Landy and Bartels
[2017] FamCA 690
•8 September 2017
FAMILY COURT OF AUSTRALIA
| LANDY & BARTELS | [2017] FamCA 690 |
| FAMILY LAW – CHILDREN – Application by mother seeking parenting orders – With whom a child lives – With whom a child spends time – With whom a child communicates – Whether there should be an order for joint parental responsibility - Allegations that children are at an unacceptable risk of abuse in the unsupervised care of the father – Orders by consent that the eldest child live with the mother – Order by consent that the mother have sole parental responsibility for the eldest child – Orders by consent that the father spend time and communicate with the eldest child as agreed between the parties and in accordance with the eldest child’s wishes - Orders by determination that the youngest child live with the mother - Orders that father spend supervised time with the youngest child – Specific Issues Orders - Injunctive Orders |
| Family Law Act 1975 (Cth) – ss 60CC(2) and (3) |
| APPLICANT: | Ms Landy |
| RESPONDENT: | Mr Bartels |
| INDEPENDENT CHILDREN’S LAWYER: | Walker Henderson Lawyers |
| FILE NUMBER: | LNC | 126 | of | 2013 |
| DATE DELIVERED: | 8 September 2017 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 18 & 19 July 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Petersen |
| SOLICITOR FOR THE APPLICANT: | McGrath & Co Lawyers |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Walker |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Walker Henderson Lawyers |
Orders
All previous parenting orders in relation to for B born … 2004 (‘the elder son’) and C born … 2011 (‘the younger son’) are vacated.
BY CONSENT (given 15 July 2015 and confirmed in July 2017) Ms Landy (‘the mother’) shall have sole parental responsibility for the elder son and the elder son shall live with her.
BY CONSENT (given 15 July 2015 and confirmed in July 2017) Mr Bartels (‘the father’) may spend time and communicate with the elder son as is agreed between the parties and in accordance with the elder son’s wishes.
BY DETERMINATION
The mother shall have sole parental responsibility for the younger son.
The younger son shall live with the mother.
The younger son shall spend time and communicate with the father for two (2) hours on four, five or six occasions per year (as are made available) at the D Children’s Contact Centre, or such other organisation as may be agreed between the parties, at such dates and times to be advised by the staff of the relevant organisation or centre.
For the purposes of Order 6 herein each party shall contact the Contact Centre within seven (7) days and:-
(a)arrange an appointment for assessment for suitability for supervised time;
(b) attend the assessment;
(c) enter into the agreements required to be entered into for supervised time;
(d) comply with any appointments made by the Contact Centre for supervised time;
(e) comply with all reasonable rules of the Contact Centre; and
(f) comply with all reasonable requests and direction of the staff of the Contact Centre.
If after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in Order 6 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on the giving of fourteen (14) days’ written notice to the other party and to the Court. Liberty to relist the matter shall apply for twelve (12) months from the date of this order.
If after assessment the parties are accepted by the Contact Centre as being suitable for supervised time, the father is to spend time with the younger son:-
(a) as set out in this order at times nominated by the Contact Centre; or
(b) in the event that the Contact Centre is only able to offer supervised times at times which are less regular than specified in this order, then the father’s times with the younger son will be spent at the times which are offered by the Contact Centre.
The periods of times to be spent provided in these orders may vary by reason of the closure of the Contact Centre’s services during holiday periods and in such event, the father’s time with the younger son will be spent at times which the services can be provided by the Contact Centre.
The Contact Centre may recommend that the parties, or either of them, participate in a program or programs, in any event either party may re-list the matter for mention on the giving of three (3) days’ notice to the other party and to the Court. Liberty to relist the matter shall apply for twelve (12) months from the date of this order.
The father shall not attend the Contact Centre or its vicinity before the time with the younger son is to start and shall promptly leave the Contact Centre and the vicinity when the time with the younger son is to end.
The parties shall contribute equally to the cost of the Contact Centre.
The father may send letters, cards, birthday presents and Christmas presents to the elder son and the younger son or either of them.
For the purposes of facilitating Order 14 herein:-
(a) within fourteen (14) days from the date of this order the mother shall provide in writing to the father a postal address for the sending of any such material;
(b) within fourteen(14) days from the date of any change of the postal address the mother shall provide to the father in writing a new and effective postal address for the sending of such material; and
(c) the mother shall give to the elder son and the younger son such presents, letters and cards sent by the father as and when they are received; however, nothing in is order shall operate to prevent the mother from removing from the elder son and the younger son any presents, letters and cards sent by the father which she reasonably considers is inappropriate for the children.
Within fourteen (14) days from the date of this order each of the father and mother shall provide to the other, in the case of the mother via her solicitor, an email address for communication between the parents limited to information about times at the Contact Centre, education and the health of the children.
Within fourteen (14) days from the date of any change to an email address the parent changing such address shall provide by email to the other parent a new and effective email address.
The mother shall do all acts and things and sign all documents as may be required to authorise the younger son’s and the elder son’s schools to provide to the father copies of any school reports and other documents and circulars which in the normal course would be provided to a parent. The father shall be entitled to purchase, at his own expense, annual school photographs.
The mother shall do all acts and things and sign all documents as may be required to authorise the younger son’s and the elder son’s medical general practitioner or medical practice and his paediatrician to provide to the father, at his own expense, copies of reports and all other documents which in the normal course would be provided to a parent.
The mother shall inform the father by email, as soon as is practicable, in the event that either child is hospitalised or diagnosed with any significant health concern.
The mother and father each be restrained, and an injunction is granted restraining each of them, from making any abusive or derogatory comments to the elder son and the younger son or in the children’s presence or hearing, including through social media or electronic communication or written communication, in respect of the mother, the father or members of their respective families.
The parties and the Independent Children's Lawyer be restrained, and an injunction is granted restraining each of them, from making any complaint to a professional body or association concerning the conduct of the single expert or concerning the content of the single expert's report, or permitting any other person to do so, without first obtaining leave of the Court.
The parties are restrained, and an injunction is granted restraining each of them, from making any complaint to a professional body concerning the conduct of the Independent Children's Lawyer, or permitting any other person to do so, without first obtaining leave of the Court.
For the purposes of the orders 22 and 23, leave of the Court must be sought by the filing of a formal application in a case with an affidavit in support.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant applications, other than costs, be and are dismissed.
Any application as to costs to be made in accordance with the Family Law Rules 2004 (Cth).
At the expiry of any appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The Independent Children's Lawyer shall forward by ordinary pre-paid post a copy of these Orders and the Reasons upon which they are based to the single expert within 21 days of the date of the Orders.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Landy & Bartels has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: LNC 126 of 2013
| Ms Landy |
Applicant
And
| Mr Bartels |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to parenting arrangements for C, aged 6, (‘the younger son’) who is the youngest child of Ms Landy (‘the mother’) and Mr Bartels (‘the father’).
These proceedings arise out of a settlement which occurred by way of final orders made 15 July 2015. At that time the parties consented to final orders that their eldest child, B, (‘the elder son’) live with the mother and that she have sole parental responsibility for that child. The elder son was and remains able to see and communicate with the father at times agreed between the child and his parents.
It was agreed by the parties that those orders relating to the elder son are not challenged, although for the sake of clarity and with the consent of the parties, the orders regarding the elder son were re-engrossed in the orders the subject of these reasons.
The orders made in July 2015 provided that the younger son spend time with the father at a Children’s Contact Centre and that it was the parties' intention to review the arrangements after a further period of supervised time.
The matter was relisted in relation to the question of time that the younger son spends with the father as the parties were unable to reach agreement in terms of such contact going forward.
The father was self-represented and struggled to carefully articulate his claim. At one stage the father indicated that he was seeking parenting orders and orders for equal shared parental responsibility in relation to both children however, when pressed and reminded of his applications he agreed that the proceedings were:-
(a) limited to the younger son; and
(b) in terms of the time the younger son spent with him.
The father sought the orders set out in his amended response to the initiating application filed 9 June 2017.
In addition, the father sought orders that the situation regarding equal shared parental responsibility continue. The mother sought an order that sole parental responsibility for the younger son be granted in her favour.
The Independent Children’s Lawyer supported the mother’s position regarding orders for sole parental responsibility.
The mother sought orders that the father have no contact with the younger son, although she conceded in evidence that she could continue to manage time at a Contact Centre provided that it was independent and that it was through the current contact centre, which prevented or limited the father’s engagement of the children in the parties’ conflict.
The mother also agreed that she would be content to inform the father of any serious health issues affecting the children. In addition, she agreed to allow the father to have access to school materials such as school reports and details of school activities involving the younger son.
The mother said that she would consent to the father sending presents and cards to both children for their birthdays, Christmas and the like.
In final submissions counsel for the mother reiterated that the mother sought an order for sole parental responsibility and asked that there be no order as to time, including supervised time, between the younger son and the father.
In his final submissions the Independent Children's Lawyer proposed that:-
(a) the mother have sole parental responsibility for both children:
(b) the children live with the mother;
(c) that the younger son spend time with and communicate with the father at the D Contact Centre;
(d) the mother notify the father at all times of the address at which the children are residing; and
(e) the mother notify the father as soon as reasonably practicable of any decisions concerning the school which the children attend, any medical or psychological treatment or issues concerning the children and that she authorise school staff and any professional treating the children to furnish the father with information at his request.
During submissions the Independent Children's Lawyer said he supported an order that the father be at liberty to send letter, cards and presents to the children, and said that there probably needed to be an order that the mother pass them on to the children if appropriate.
Counsel for the mother said the mother was supportive of the sending of letters, cards and presents. Her evidence was that she would not want to open such letters, cards and presents, because they are addressed to the children and are personal to them. However, she wanted it clear that she had the power to remove such letters, cards or presents if they were inappropriate. Given that consent I will make such an order.
If an order for sole parental responsibility was made, counsel for the mother said the mother would be supportive of such an order giving the father access to information regarding the children, if sole parental responsibility is ordered. However, the mother would prefer the institution or person to give information directly to the father. This is because the mother would not be supportive of any order that requires any direct communication between her and the father.
The Independent Children's Lawyer made submissions in support of an injunction restraining the father from making any complaints against the Independent Children's Lawyer and/or the single expert, given the evidence about the father and his inability to manage differing views.
Counsel for the mother said that the mother was supportive on the injunction in favour of the single expert and said that he had ‘little personal fear of any complaint against the Independent Children's Lawyer’[1] as he had ‘acted in an entirely professional and proper manner throughout this proceeding’ [sic].[2]
[1] Transcript of Proceedings dated 19 July 2017, page 8.
[2] Ibid.
THE ISSUES
Thus the issues before the Court for determination were:-
(a)whether there should be an order for sole or joint parental responsibility for the younger son; and
(b)what time, if any, the younger son spends with the father.
BACKGROUND
The father is aged 52 years and is a tradesman by occupation.
The mother is aged 44 and is not in paid employment.
There was an issue as to the parties’ relationship. The father asserted there was never a relationship. The mother asserted that they were in a relationship from 2001 until 2003, during which the father spent significant time at her house. Then after that time they maintained a ‘friendship’ and the father would come and go as he pleased. However, the mother says he treated her as his property and engaged in controlling behaviour. The father denied that circumstance.
In any event by late 2014 the parties’ relationship or friendship concluded. By that time they had parented two children: the elder son and the younger son, now aged 13 and 6 respectively.
The father asserted that the mother was too strict a gate keeper and was endeavouring to alienate him, in a practical sense, from the children.
Proceedings commenced in 2013 and reports were prepared by a single expert: the first on 20 March 2014 and the second on 8 May 2015. The matter was transferred from the Federal Circuit Court to the Family Court and came before Dawe J for hearing in July 2015. At that time the parties reached the agreement in terms of the consent orders made that day.
From that time onward the younger son has been seeing the father at the Contact Service.
In December 2016 the parties could not reach agreement as to where the arrangements ought to proceed from there. Earlier that year the younger son had been diagnosed as being autistic. The father wholly rejects that diagnosis.
In December 2016 the matter was re-listed and an updated report was requested from the single expert. He provided his report of 16 May 2017 together with an updated report on 7 July 2017.
The proceedings were listed for hearing before me in July 2017.
Any statement of fact in these reasons is to be treated as a finding of fact unless the contrary is clear from the context.
THE LAW
The provisions of the Family Law Act 1975 (Cth) (‘Act’) that deals with children is set out in Part VII. In particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a 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).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for 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 of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The terminology of the section is thus that the court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)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).
(3)Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(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;
(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;
(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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
I will endeavour to apply the facts to the law.
THE EVIDENCE
Documents
The Independent Children’s Lawyer produced a pre-trial document.[3] This document was not treated an as admission of the facts asserted in it. The Independent Children's Lawyer adduced evidence from the D Children’s Contact Service as to recent arrangements for the children and interaction between the Contact Service and the father.[4]
[3] Exhibit ICL 1.
[4] Exhibit ICL 2.
The Independent Children’s Lawyer tendered a bundle of documents prepared for the 2015 trial[5] and a bundle of documents for this trial.[6] These are Exhibits ICL3 and ICL 4.
[5] Exhibit ICL3.
[6] Exhibit ICL4.
Exhibit ICL3 contained:-
(a) a report of Mr E (‘the single expert’) dated 20 March 2014;
(b) a Child Dispute Conference Memo 3 December 2013;
(c) a F Group report 12 July 2013;
(d) notes of interview with a school principal and the elder son’s class teacher 7 February 2014;
(e) notes of discussion with school social worker 8 December 2014; and
(f) a letter from social worker to the Independent Children's Lawyer dated 11 December 2011.
Exhibit ICL4 contained:-
(a) reports from the single expert dated 8 May 2015, 16 May 2017 and 7 July 2017. The single expert was cross examined in respect of all of his reports; and
(b) documents produced under subpoena from the D Children’s Contact Service (‘the Contact Service’).
All of this material was admitted by consent.
The mother provided a case outline through her legal practitioner.[7] That document was admitted into evidence not as an admission of the facts that it contained, but as to the outline of the mother’s case.
[7] Exhibit M1.
The mother relied upon her affidavit filed 15 June 2017, her initiating application filed 3 September 2013 and a bundle of documents.[8] That bundle included:-
(a) the mother’s case outline, which was treated in the way earlier described;
(b) the mother’s affidavits filed 15 June 2017 and 23 January 2015;
(c) the mother’s initiating application filed 3 September 2013;
(d) a further copy of the report from the single expert of 16 May 2017; and
(e) documents produced by Tasmania Police including the father’s police driving record and a series of police incident reports.
[8] Exhibit M2.
The father relied upon his amended response filed 9 June 2017, his affidavit filed the same date and an affidavit of the children’s maternal grandmother, Ms Landy, filed 14 June 2017.
In addition the father tendered in evidence a medical report from the Burnie Hospital[9] and a police statement made by the mother in 2013. That statement was consistent with an application for a Police Family Violence Order.[10]
[9] Exhibit F1.
[10] Exhibit M2 pages 142 to 145.
WITNESSES
Mr G
The father issued a subpoena to Mr G, the manager of the Contact Service, to adduce evidence. Mr G attended court with counsel at the commencement of the first day of the hearing. Counsel objected to Mr G giving oral evidence.
The father, who is self-represented, indicated that he wished to cross-examine Mr G in relation to the procedures at the Contact Service. In addition, the Independent Children’s Lawyer wanted to obtain updated information from Mr G in relation to the supervised time between the father and the younger son. Given the limited nature of the cross-examination, I permitted that course.
Mr G gave oral evidence and was not seriously challenged in relation to that evidence. He gave evidence as to the Contact Service’s protocols in the event that a child was sick. Normally what would happen was that the non-resident parent’s time with the child would end, the resident parent would be called and the child would be returned to their care. He said if a child became unconscious, other than asleep, then an ambulance would be called.
Mr G gave evidence that he had not met these children and was not at the Contact Service in October 2015 when particular events occurred.
He provided copies of the records of the visits at the Contact Service in recent times.
The father asserted to Mr G that the Contact Service was ‘actively supporting a child abuser, the mother, as well as poisoning one of the children’. That assertion was rejected and I accept that the Service was not as contended by the father.
The oral and written evidence showed that the younger son was spending time with the father on a monthly basis, and that the time is progressing reasonably well, except that the father engaged the child in the conflict such as:-
·17 March 2013 saying the younger son had ‘lots of cousins’, encouraging the child to put a hose near his face;
·12 May 2017 saying ‘real boys play in the rain, [the elder son] always used to play in the rain with me’;
·9 June 2017 (incorrectly referred to as 6 September 2017) saying ‘I have seen your cousins and been playing’ … confirming with the child that he was bored needing an intervention of the supervisors; and
·7 July 2017 I will not recite the events set out on this day, but I have noted them.
On the evidence of Mr G and having read the written material I find that the father does not respect the Contact Service or its staff, nor does he always abide with the agreement he has with the Contact Service as to his interaction with the younger son.
I have treated the evidence of Mr G as being reliable.
The mother
The mother gave evidence in accordance with her affidavit of 15 June 2017. She has managed the time at the Contact Service well and in particular thoughtfully prepares the younger son for these visits. However, the younger son is at times reluctant to attend at such visits, given his health issues.
The mother said that the younger son is six years old and had allergies, but these are now significantly reduced. He suffers from asthma and takes daily medication. Both he and his older brother have an autism spectrum disorder. The mother provided some relationship history, although I make no formal findings as they are irrelevant to these proceedings.
Following separation the mother complained that the father arrived unannounced and drove by the house in what she described as ‘stalking behaviour’. The mother says she became frightened. I accept her evidence in that regard.
The father asserted the mother had mental health problems. In May 2013 the mother alleged that the father broke a window at the house. As to the mother’s fears of the father, given her evidence, I am satisfied that those fears are real and based on the, at times violent or threatening behaviour of the father.
The mother’s evidence is that the children still have significant behavioural problems arising from being on the spectrum and it is clear from the evidence of the single expert, and from the father himself, that he does not accept the autism diagnosis of the children.
The mother’s evidence was that after the consent orders were made in July 2015 the younger son’s behavioural problems continued.
The conflict between the parties continued after July 2015. I accept, the mother’s evidence that the father’s drives past her home and her concerns in relation to his comments at the Contact Service, to which the mother refers in her affidavit.
The father cross-examined the mother in relation to her evidence.
The father made accusations about the mother’s criminal behaviour in terms of assaults and stealing from Centrelink. The mother denied such behaviour.
The father cross-examined the mother in relation to the numerous and different doctors who had seen the children. The mother’s explanation was short and to the point, that is that the children attended a medical centre, and they have seen different doctors at that centre depending on the children’s circumstances and the availability of practitioners. One or two of the doctors were people with whom the children did not get on well, however, there was a doctor whom they now like and apparently trust. The father’s complaint in this regard was unfounded, bearing in mind that the children are going to the same medical centre which they attended prior to the parties’ separation.
The mother was cross-examined in relation to the younger son apparently saying he had no maternal grandmother. The mother said that the child was aware he had a grandmother. The mother said he had not seen her mother for about eight and a half years. The mother did not wish to restore that relationship, although she has a relationship with four of her six siblings and sees them from time to time.
There was some cross-examination in relation to a friend of the mother’s whom the children called ‘Auntie’, but nothing swings on this.
There was some valid criticism that the mother had changed the younger son’s school without reference to the father. The mother’s reasons seemed sound and according to the May 2017 single expert report the new school seems to work well with the younger son. The mother gave evidence of activities she undertakes with the younger son and also the steps she took in relation to the diagnosis of autism.
The younger son is cared for by a general practitioner and a paediatrician. He has good academic and psychological assistance at his present school.
The mother’s evidence in relation to the father was that she was scared that he would undermine her relationship with the children and that he is not responsible with the younger son when the younger son is in his care.
The mother made it clear she would persevere with the supervised arrangements if it was ordered on a limited basis. I accept her evidence in that respect.
The mother gave evidence about the bruising on the elder son which occurred in 2012, but which was not reported by the mother until 2016 when she applied for a police family violence order. The mother said she complained to the father, but did not otherwise complain as she thought the relationship, such as it was, was continuing.
The mother is content for school reports and the like to be made available to the father. Similarly, she is content for the children to be sent letters, cards and presents for birthdays, Christmas and the like.
She said that she had not received letters or cards from her mother for about eight years.
The mother gave thoughtful and cogent evidence. She was not shaken in cross-examination by either the father or the Independent Children’s Lawyer. Clearly the mother’s evidence was coloured by her poor views of the father and her fears of the father, which fears I accept were genuine.
The father
The father gave evidence in terms of his affidavit filed 9 June 2017. This affidavit was prepared by a solicitor and was read into evidence. The father presently lives with his mother (‘the paternal grandmother’) in her home and is her carer. The paternal grandmother mother is quite frail and is aged in her mid-80s. About four months ago the paternal grandmother had a fall and is presently in a convalescent facility, although she is expected to return to her home following her recovery.
The father says he has a close relationship with the mother’s family. This was supported by the evidence of the maternal grandmother.
The father denies that he was ever in a relationship with the mother apart from a casual sexual relationship. He said that the mother limited the contact he had with the elder son, but that prior to and following the younger son’s birth he and the mother were getting along, albeit that she was restrictive of contact with the children. The father said that he stayed at the mother’s home from time to time and denied that he was ever controlling or abusive to the mother.
In mid-2012 the father says the relationship/friendship between the parties began to deteriorate and that the mother began to denigrate him. In October 2012 he says he was told by the mother that he was not welcome at the home and could not have contact with the children.
The father’s evidence was that the parties ended up in litigation which began in 2013 and which was resolved by consent orders made on 15 July 2015. Those orders provided that:-
(a)the mother have sole parental responsibility of the elder son;
(b)the elder son live with the mother;
(c)the parents have equal parental responsibility for the younger son; and
(d)the younger son sees the father at a contact service with that arrangement being reviewed after a period of time.
If the parties were unable to reach agreement then the matter would come back to court, but be limited to the question of the time the younger son spends with the father.
The father was cross-examined in relation to paragraph 21 of the single expert’s May 2017 report where it set out that the father could think of no short comings in respect of his parenting capacity and asserted that this was the case.
The father has been aware that the younger son has attended H School since last year, but he had not gone to any parents and teachers nights.
The father conceded that he knew the children went to the J Medical Centre. He had complained earlier in the hearing, through cross-examination, about the mother doctor shopping. This allegation also comes out in the reports from the single expert. In speaking with the single expert the father had rejected the autism diagnosis of the elder son and the autism specific disorder diagnosis with regard to the younger son. He was aware of the testing that had been done, but said that because there was no input from him he could not rely on that testing. He was aware of at least some of the specialist services with which the younger son is engaging.
The father is an aggressive man and determined in his views. He does not like the Contact Service, and he and the Contact Service have had a poor and conflictual relationship. There are a number of concessions he made in terms of the reports from the Contact Service. These included:-
·3 June 2015 - the father stated that the mother was a child abuser and he was going to sue the social worker for neglect as he is appalled and bitter about the situation and went on to say that the mother stopped the children’s reunification with him for the last time visiting the service.
·23 December 2015[11] - this was two days before Christmas and the notes observed:-
‘[The father] asked to stop saying [the younger son] is told lies, he replied ‘whatever’. [The father] said to [the younger son] about a person not being his real aunty and says you have been told lies. [The younger son] said ‘you are telling lies’, [the father] said ‘who told you that’, [the younger son] said ‘[the elder son]’. The supervisor asked [the father] to focus on [the younger son] and not upset him, today is about [the younger son]. [The father] said to the supervisor ‘you put the truth in your report that [the younger son] is told lies’. The supervisor asked him to stop, then he [the father] walked out of the centre, no goodbyes to [the younger son].
[11] Exhibit ICL4 page 65.
This occurred on shortly before Christmas and the explanation provided by the father was unsatisfactory. He exhibited poor anger management in respect of this event:-
·8 July 2016[12]- During the visit [the father] said to [the younger son] ‘have you been outside this week?’ [The younger son] said ‘no, been coughing a lot’. [The father] said that little boys need to go outside in the fresh air. The supervisor said to [the father], ‘[the younger son] has been unwell with his asthma’. [The father] said ‘it’s all lies. Have you seen a medical certificate, no’. The supervisor asked [the father] to please change the subject. [The father] stated ‘you’s [sic] are protecting an abuser’.[13] The supervisor said to [the father] ‘that’s enough, change the subject’. [The father] changed the subject and talked to [the younger son] about dinosaurs. [The younger son] was going to go outside and the supervisor said to [the younger son] ‘you can’t go outside because of your asthma’. [The father] stated ‘no he hasn’t’. ‘Where’s his action plan for asthma? I have a right to see it’. The supervisor said to [the father] ‘if you need to discuss this go to the other room away from [the younger son]’. [The father] talked to the supervisor with no sound coming out of his mouth.
·4 September 2015[14] -in this visit the notes show that the father became pre-occupied with the mother and how she looks after the child, stating that the mother has ‘Munchausen’. This was in the presence of the child and the father endeavoured to prevaricate by saying the child would not understand. During the same visit the father asked the staff to record what was being said and stated in a conversation with the child ‘you don’t play with other children … you don’t know what sharing is’.
·19 February 2016[15]-The father said to the child words to the effect ‘real boys play outside, go to the beach and visit their grandmother, you are not a real boy’. He also had a conversation with the child when the child asked [the father] ‘where are you going?’ [The father] apparently replied ‘going outside it’s boring inside, it is a beautiful day’. [The younger son] said ‘it’s not boring inside for me’. [The father] said ‘yes it is’. [The younger son] said ‘no it is not’. [The father said ‘that’s what you think’. [The father] sat on the floor and said ‘it’s boring inside it’s baby toys’. During the visit [the father] said ‘can you record every time I mention, he has another grandmother he says he doesn’t’. The supervisor said all conversations are recorded. [The father] said ‘no it wasn’t on the report, there was no mention of it’. [The father] later on mentioned to staff that the report did not have that [the younger son] did not know he has 2 grandmothers.
[12] Ibid page 100.
[13] This was in the presence of the younger son.
[14] Exhibit ICL4 page 175.
[15] Ibid page 125.
The father also gave evidence in relation to the episode at the Contact Service on 16 October 2015. I have dealt with that later on in these reasons.
As I said earlier, the father rejects the younger son’s diagnosis of autism spectrum disorder and the father is unbelieving of the younger son’s asthma. There is evidence that he does not respect the opinion of the single expert or other health care professionals.
As to the women at the Contact Service, the father, in evidence, described them as ‘nasty women’ and in the material from the Service he used demeaning terms about them and to them. The father says the mother is brutal and he made no positive comments about her.
The evidence of the father was rigid and determined. There was at least an element of exaggeration, particularly in terms of his description of the younger son lying on the couch or the floor at the Contact Service on 16 October 2015 and waiting an hour and a half for the ambulance to arrive. Clearly the time was shorter than that, but the father would not be deflected from his view in that regard. He asserted that the mother poisoned the younger son. I am satisfied that this is the father’s deep belief, despite, coming to that conclusion in the absence of meaningful facts.
The father clearly loves the children and wants to have a relationship with them, but his dislike of the mother is palpable. He does not respect her and I accept the submission of the mother’s counsel that the father has a deep hatred for her.
Given the father’s aggressive, determined and at times inherently unreliable evidence, in terms of his explanation as to why he did not report the younger son’s alleged poisoning to the hospital, his evidence was treated with caution.
Ms Landy
Ms Landy (‘the maternal grandmother’) provided evidence through an affidavit filed 14 June 2017. The evidence was adduced on behalf of the father. The maternal grandmother was too unwell to attend court and gave evidence by telephone. Her affidavit was read into evidence.
She said that she is the maternal grandmother of the children and has known the father for about 14 years. She has seven children, 20 grandchildren, and has a great grandchild. She is a widow, her husband having died in 2006. She has not had a relationship with the mother since 2008 and says the relationship broke down over a relatively minor argument.
The maternal grandmother regards the father as a friend of the family. He helps her in the garden and comes to family functions.
The maternal grandmother says she grieves that she has not spent time with the elder son since 2008 and has never met the younger son. She says she has a large and close knit family who get on well with each other. Her other grandchildren spend time at her home.
When she gave evidence the maternal grandmother said she can only go out on limited occasions and walks on crutches. She has issues with nerves in her leg which cause great pain. As a consequence she has medication, including sleeping tablets at night and pain killers during the day. She has another health issue which may give rise to surgery later this year.
The mother and the elder child lived with her until the minor argument to which I alluded earlier.
The maternal grandmother disclosed that she did not know she was being considered as a supervisor, but said she would do so although did not fully understand the role of a supervisor.
The maternal grandmother has not sent letters, cards or presents to the children as she fears the mother may tear them up or not give them to the children. The mother gave evidence that she would not do so and said she would hand over letters and presents to the children.
It is clear that the maternal grandmother is very keen to see her grandchildren. She sees the father as the injured party and is strongly aligned with his cause. Given the approach of the father at the Contact Service I do not accept that the maternal grandmother would be strong enough to properly supervise any visits between the father and the younger son.
I find that she gave her evidence frankly and directly, although she was closely aligned to the father and that was reflected in her evidence.
The single expert
The single expert is a psychologist who was appointed to prepare reports in relation to the settled 2015 hearing. He prepared reports dated 20 March 2014, 8 May 2015, and shortly before the July hearing he prepared two more reports dated, 16 May 2017 and an updated report of 7 July 2017. All of those reports were read into evidence.
There was no challenge to the single expert’s formal qualifications. The father challenged the single expert in terms of accepting what he was told by the mother, but rejecting what he was told by the father. As such the father said that the single expert’s reports were unreliable for those reasons.
In his first report the single expert found it was probable that the elder son had been alienated from the father, within the meaning of being aligned with one parent and estranged from the other. He observed that this could be either intentional or unintentional. In an earlier report the single expert concluded that:-[16]
111.In the case of [the elder son] a number of parent, child, and situational factors are considered to have contributed to [the elder son’s] resistance to spending time with the father. Firstly, it is quite likely he did not establish a strong father-son relationship to begin with. The father was not involved in [the elder son’s] life in the first three, formative years of life during which attachment formation usually occurs. …
… The mother ‘appears’ to have acted as an alienating parent …
[16] Single Expert report 20 March 2014 – Exhibit ICL3.
The single expert said this arose because she unreasonably restricted in controlling [the elder son’s] time with his father and promoted a belief that the father abandoned the child. He went on to observe that the mother is predominantly motivated by a genuine commitment to protect the children but had no or limited insight into the possibility of parenting and may be obstructing [the elder son’s] development and cause psychological harm.
He observed that:-[17]
Both [the children] have their most important attachment relationship with their mother. … [The elder son] would find it especially difficult [to have a relationship with the father] because of the strength of his alignment with her [the mother] …
[17] Ibid at paragraph 119.
The father was damned with faint praise, with the single expert observing that he considered the father to have:-[18]
… sufficient parenting capacity to meet the children’s basis needs …
[18] Ibid at paragraph 120.
He went on to make some recommendations, but said that his report was limited as he did not have the opportunity to personally observe the children’s interaction with the father.
In his May 2015 report the single expert confirmed that the elder son had no wish to spend time or communicate with the father and that the younger son was too young to express a view. He reiterated the view that the elder son was strongly alienated from the father, and went on to observe that the elder son had features of autism spectrum disorder. The diagnosis was subsequently confirmed and I accept the evidence of the mother in that respect.
In the third report prepared the single expert in May 2017, it was clear that the father expressed to the single expert his anger as to his views of the staff at the Contact Service and it was difficult to direct the father onto his relationship with the younger son.
The father was critical of the mother in terms of what he regarded as ‘doctor shopping’. However, this was in the circumstances where the mother was taking the children to the same practice, but seeing different doctors in that practice.
The single expert reports that father was of the view that the medical practitioners were biased against him. He asserted to the single expert, and to others including the Contact Service, that he believed the mother physically and emotionally abused the children. He denied to the single expert the bruises to the elder son on which the mother had given in evidence. The father could see no shortcomings in his parenting.
The single expert observed that the father’s presentation was:-[19]
…Somewhat unkempt in appearance, wearing ripped trousers and soiled shirt. His attitude was hostile and uncooperative from the outset. Speech was normal and behaviour was settled … Notwithstanding his strong sense of injustice and indignation and, at times, direct criticism of the Writer, he was not aggressive or threatening even when challenged to reflect on his own parenting shortcomings.
[19] Report 16 May 2017 at Paragraph 23.
The single expert said that the younger son interacted well with the father. That is consistent with the evidence from the Contact Service.
In this later report the single expert opined that the mother appeared more reasonable in her thinking, she was less than alarmed about the risk to the children, less inclined to focus on the father’s shortcomings and generally talked about positive progress the younger son made in transitioning to school.[20]
[20] Ibid, paragraph 42.
As to the father the single expert observed of him:-
43.… In this and the two previous assessments he [the father] expressed strong opinions and externalised responsibility for all difficulties with an attitude of contempt towards others while disavowing any personal shortcomings. He expressed considerable anger in what he perceived to be the injustice of persecution by others, such as the mother, health professionals pathologising the children and making false statements about him.
The single expert went on to find no positive changes in the father’s insight and capacity for critical self-reflection. He was concerned about the father’s ability or willingness to set aside his own anger to give priority to the younger son’s needs in order to strengthen the relationship.
It is the view of the single expert, which I accept, that these personality traits are unlikely to change in the future. He went on to note:-[21]
46.Noting that the children have autism spectrum disorder and the father has some unusual personality traits, it is possible they share a common underlying psychological makeup. If this is the case, then it is easy to understand why the father may personally identify with the boys experience and objects to them being seen as anything other than normal.
[21] Ibid paragraph 46.
As to the mother, the single expert observed that she was meeting the younger son’s needs well and had articulated and demonstrated willingness and ability to facilitate the younger son’s time with the father. This is consistent with the evidence of the Contact Service.
As to the interaction between the mother and father he observed:-[22]
48.As noted in earlier reports, the difficulty arising from [the mother’s] interpersonal sensitivity is that she may extend her defensive self-protectiveness to include the children and be restrictive in facilitating their time with the father and the maternal family. Realistically, while the father’s attitude and behaviour remain blaming and negative, it will be difficult for [the mother] to trust him and promote him in a genuinely positive manner.
[22] Ibid, paragraph 48.
The single expert went on to conclude that he was less confident about the father’s parenting capacity and his capacity to offer the younger son a safe and protective and meaningful relationship. He went on to conclude that overall the father is not considered to have sufficient capacity to meet the younger son’s needs without the safeguard of supervision by a responsible adult.
Given the evidence before me I accept that conclusion. The single expert concluded that it was not envisaged that the younger son could safely spend overnight time with the father in the foreseeable future.
I accept this evidence, particularly given the reports of the Contact Service.
This is in the context of the younger son having less psychological resilience than other children of his age and the higher need for sensitive care. The clear evidence of the single expert was that this could only occur at a contact centre such as the Contact Service.
The single expert went on to say that the Contact Service could only facilitate four or five visits per year and whilst twelve visits were preferable five or six between the younger son and the father would be sufficient. This evidence was confirmed in the evidence given by Mr G.
Consequently the single expert recommended that the time at the Contact Service continue as is available through the centre.
In conclusion the single expert observed:-[23]
54.It should be not be assumed that [the younger son] will continue to want to spend time with the father as he grows older. [The elder son] estrangement from the father may still influence [the younger son] in time. [The younger son] will only want to continue to spend time with [the father] if doing so is uncomplicated and fun. [The father] is again encouraged to set aside his own grievances with the mother and the staff at the contact centre and focus on making [the younger son’s] time as easy as possible.
[23] Ibid at paragraph 54.
In his final report of 7 July 2017 the single expert noted, and I accept, that nine of the 17 visits are described in positive terms; however, in eight of the 17 visits the father seemed to have caused unnecessary difficulties which prompted staff to intervene and redirect him.
The evidence of the single expert and from the records of the Contact Service is that the father does not accept direction and on some occasions has responded with anger.
The single expert also said, having reviewed the additional information, that his views expressed in his May 2017 report have not changed and he continues to believe that the mother has not alienated the children.
The father’s cross-examination of the single expert was very aggressive and he needed to be brought back into questioning and from not making broad unsubstantiated complaints.
The single expert was asked about the involvement of the maternal grandmother, and said he doubted that she would have the capacity to intervene as is needed with the father, given his history. He was not confident about the father’s coping ability to make changes and not undermine the children’s relationship with the mother. This was given in the light that the younger son does have a good relationship with the father.
The single expert observed that the father likely denigrated the mother and was querulous about aspects of her parenting. The father has an eccentric personality, which causes problems with the children. In other circumstances this may not be an issue, but it is in contrast to the mother’s emotionally sensitive approach.
Any supervisor involved would need to be strong enough to intervene and deal with the father’s eccentricity and his determination.
The father asked whether it was likely that the mother was suffering Munchausen by Proxy. The single expert said he found no such diagnosis.
The single expert said that the father tested the boundaries of the Contact Service and that this was likely to continue, which caused the single expert concern.
I accept the evidence of the single expert, particularly given the longitudinal nature of his involvement with this family. I accept the single experts’ recommendations in his recent reports.
The cross-examination of the single expert by the father was quite robust and at times aggressive. The father is at times querulous and is not afraid to complain about anyone who disagrees with him. He has strong views and often those views are fixed. To that end I reiterate the comments I made about the father as observed by the single expert in his report.
I was concerned that the father would endeavour to make unfounded complaints about the single expert following the findings by this Court. This Court has had the advantage of observing the single expert, reading his reports and seeing the single expert cross-examined.
Much of the material in relation to any complaint would need to come from this Court and the single expert has obligations to this Court as a single expert under the Family Court Rules 2004 (Cth). I raised with the parties whether I should consider an injunction to prevent any complaint being made against the single expert without the leave of the Court. I invited the parties to make submissions at the end of the hearing.
I have heard and had regard to those submissions.
Having regard to all of the circumstances I am satisfied that there is a risk to the single expert of ill-informed and partisan complaints about his work as an officer of this Court. If the father, or for that matter the mother, has complaints about the single expert they ought to raise them with this Court first and obtain leave to lodge a complaint with any professional organisation.
There is a broader aspect to this which is that experts are employed by the Court and are required to be robust and forthright in their reports. That means that they will, from time to time, upset the parties to the dispute.
This should not mean that the experts are immune from complaint; however, any complaint should be approved by the Court so that if the complaint is frivolous or vexatious it can be stopped before it is lodged. If the complaint has some substance then material from the Court can be made available, if necessary, in an appropriately anonymised way, and thus enable a reasoned determination of that complaint.
Given those circumstances I will be making an order restraining both parties from making complaints without the leave of the Court. This is, as I understand it, consistent with an approach adopted by judicial officers in the Family Court of Western Australia.
The poisoning allegation
There was an incident which has caused the father grave concerns in respect of the younger son. This occurred during a visit at the Contact Service on 16 October 2015. This was a few months after the orders were made in July 2015. The younger son was brought to the Contact Service by the mother, and the father began interacting with the child at about 3.15pm. The session was due to conclude at about 5.15pm.[24]
[24] Exhibit ICL4 pages 160 to 163.
The visit started off well. The younger son arrived with food and drink, and also an asthma puffer and spacer in his bag. The mother left without any problems. The younger son was asking for his father. When the younger son arrived it was observed that the child smiled and talked softly; and this was mutual. It was further observed that when the doorbell rang and the younger son called out ‘daddy’ and ran towards the door. Staff said ‘who is it?’ The younger son said ‘that’s my daddy’ with a smile. The father picked up the younger son when they saw each other.
In terms of behaviour the notes recorded ‘smiles – consistent – chatting with each other – playing together’. Further as to the nature of play, it said it was ‘relaxed’ and they were playing ‘dinosaurs – dolls house – ride on’. The father gave the younger son crab rides, flew him like an aeroplane, the younger son laughed and squealed, and gave big smiles. The interaction was mostly equal.
The notes revealed that the father picked up the younger son and he smiled and asked for help from the father, who provided it. The younger son climbed on the father when he was on the ground and they were in close proximity to each other throughout the visit.
At the commencement of the visit the father said on entering ‘look at my big boy’. Staff told the father that the younger son had brought food and drink and that he had been left with a puffer. It was a very windy day. The father stated ‘no asthma, no medical certificate’. The staff asserted ‘just be aware – you have the information – it is very windy’.
The father very briefly and quietly said to the supervisor ‘child protection rang her [the mother] and they are looking into her’. When the father was told about the puffer he raised his middle finger, pulled a face and said ‘care factor’ and gestured with his finger. He then took the younger son outside to play. This was aggressive behaviour on the father’s part.
At some time during the session, the father said it would have been about 3.50pm, the father became concerned when the younger son said he was not feeling well and held his hand and wiped his head with a cloth. The father kept asking if he was all right. When the younger son went to sleep, the father talked about the mother drugging the child. He stated that he does not trust her and would not put it past her. The father then told the staff at the Contact Service to call an ambulance.
This was the beginning of a difficult event. The staff decided to bring the visit to an end and called the mother, but they declined to call an ambulance. The father became quite agitated by this. He pressed for an ambulance to be called, but eventually left. The mother arrived and it is clear that when she arrived the child was either deeply asleep or unconscious. An ambulance was called.
The father tendered clinical notes from the D Regional Hospital.[25] Those notes showed that an ambulance arrived at the hospital at 5.35pm and the younger son was brought in with a history of a post vomiting, unresponsive episode. The notes record a history that when the mother arrived at the Contact Service she could not rouse the younger son and an ambulance was called. It took 90 seconds for the ambulance officer to rouse the younger son and bring him back to normal.
[25] Exhibit F1.
On examination the younger son seemed to be alert, interactive, and playful. His vital signs were normal, his alert scale was 15 out of 15 and there were no signs of head injuries. The younger son was in all respects clear and he was discharged home with a review to the doctor the following day. That in fact occurred.
It was the father’s opinion that the younger son exhibited signs of having been poisoned, and he asserted that the younger son had been poisoned by the mother. The father did not ask the hospital to undertake any toxicology tests and prevaricated in terms of his answers in that regard.
The essence of the father’s evidence was that he believed the younger son had been poisoned by the mother and was at risk of dying. He conceded that he did not raise the question of poisoning directly with the staff at the Contact Service, but talked about ‘mickey.[26]’ The reference to that term was not on the records and the issue regarding this statement was not addressed in the father’s affidavit. I find that the assertion of the ‘mickey’ was either reconstructed or recently invented by the father.
[26] Which in hindsight is probably a reference to a ‘mickey finn’ or a ‘mickey’. The Macquarie Dictionary defines these terms as colloquial for ‘a drink, usually alcohol, which has been laced so as to cause to fall asleep, to discomfort, or in some way to incapacitate the person who drinks it’. It is also a generic Irish name from the 19th century for a double shot of spirits. I took it that the father was referring to it in the former rather than the later sense.
The father then did not press for the ambulance nor did he attend at the hospital to ensure that the younger son, who, in his view, had life threatening poisoning and ought to be thoroughly checked. I do not believe the father.
I am satisfied that the most likely explanation is that the younger son had a stomach ache, was unwell and went into a deep sleep. The mother arrived and given the circumstances insisted on an ambulance to be called and the younger son was woken by the ambulance officers after about a minute and a half. There were no other adverse signs observed by the hospital or observed when the younger son went to see the doctor the following day.
CONSIDERATION OF S60CC FACTORS
I am required to consider the factors under s 60CC of the Act in determining these parenting issues. In considering these factors, I have had regard to all of the relevant evidence provided during the hearing and findings made by me.
Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;
The father’s contact with the younger son at the Contact Service is quite often very good. They like each other, they interact well and there is clearly mutual love and affection.
However, at the same time the father is unable to contain himself and is unable to separate his conflict with the mother from the younger son. There is a benefit in the child having a meaningful relationship with the father. The meaningful relationship with the mother is not in issue as consent orders had already been made and it was not the subject of these proceedings.
The significant issue is the risk to the younger son by the father’s behaviour.
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;
The younger son is not as resilient as others of his age and in that respect I accept the assessment of the single expert. He is more open to psychological or emotional damage by the father’s uncontained behaviour and from the father’s deep dislike, distrust and hatred of the mother.
The father’s capacity to parent in an unsupervised way is significantly compromised by his anger and lack of containment. He is an embittered person with a sense of persecution and a dislike and distrust of professional advice, the mother and the family law system.
The father cannot resist that impulse, which is shown by the number of events that occurred in the supervised environment.
This has to be seen in circumstances where this environment was intended to create a relationship between the younger son and the father with a view to possible unsupervised time. Yet in the context of that supervision the father still engaged in ways which could undermine the relationship between the younger son and his primary carer, the mother.
The father has little insight into the value of the Contact Service. The Contact Service provides him with the last opportunity to have a relationship with the younger son and for the child to have a relationship with him. Yet the father is demeaning of the staff and is aggressive and very distrustful of them.
Fortunately, the evidence of the single expert is that there are no overt signs of detriment to the younger son at this time. Whilst the abuse to which the father exposes this child is not at high level, the special needs of the younger son make it problematic.
The mother’s view is that the only way to protect the younger son from this abuse is to stop all contact. The view of the Independent Children’s Lawyer is that the limited time available is, on balance, the best approach. The father believes there should be no supervision or no limitation on his time with the younger son and it should be built up to significant and unsupervised time.
The Independent Children’s Lawyer has persuaded me that whilst there is a risk to the younger son if that time is contained within the Contact Service, it can be managed and minimised. If the father’s behaviour is not appropriate then the Contact Service has the strength to bring the session to an end.
I am satisfied that there is a risk of emotional and psychological damage to the younger son in the unsupervised care of the father, but that such risk can be contained through the Contact Service.
I am not satisfied that this risk can be contained in terms of supervisors such as the maternal grandmother. She has limited mobility, she has no insight as to the dangers which the father presents to this child and any termination of his time with the younger son would mean termination of her time with the child, with whom she desperately wants to have a relationship. It puts her in an awful situation and is not, in my view, safe for the child.
The younger son does not know and has not met the maternal grandmother.
Section 60CC(3) Factors
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;
The younger son has expressed views in his own way that he wants a relationship with the father, but that this relationship should remain in the Contact Service. I have given some weight to that view.
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 other relative of the child);
There is no issue that the younger son’s primary relationship is with the mother. The relationship with the father has been tenuous, but it has been building up through the Contact Service. The mother has not significantly interfered with the father’s times with the younger son at the Contact Service and has appropriately prepared the child to go to and come from the Centre.
The child’s relationship with the father is so far adequate and is a happy, loving relationship. I accept the evidence of the single expert that it is problematic into the future given the elder son’s view of the father and the behaviour of the father.
Section 60CC(3)(c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
There are no issues in relation to support as both parties are in receipt of Government benefits.
The father had in early years not engaged with the younger son as much as he could or ought to have. I am satisfied that the mother is likely to have had restricted the father’s contact with the younger son out of her fear, dislike and disrespect of him.
Section 60CC(3)(ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
Since 2013 the father has sought to become a part of the younger son’s life and has been able to do so through the Contact Service, although his lack of containment in that context is troubling.
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; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is no consideration of a change of the younger son’s residential circumstances. The issues for the Court to determine is whether the father has no time, supervised time at a Contact Service or unsupervised time with the younger son. Given the evidence in this matter unsupervised time cannot be a reasonable proposition and the issue is whether there is no time or supervised time.
I accept the recommendations of the single expert and I am satisfied that the change to supervised time at the Contact Service, albeit limited to once every two months or so, is the best available option. No time would be unlikely to have any long term detrimental effect on the child from the views of the single expert. However, there may be some possibility of impact given the evidence of the single expert.
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;
At the Contact Service there are practical difficulties in terms of the available time. As to expenses, these could be a problematic given the financial circumstances of the parties, but they have been met over recent times. Unsupervised time is not an available option for the reasons set out below. Other paid supervisors are not realistically possible because of the limited means of both parents.
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;
There is no issue as to the mother’s parenting capacity. Initially the single expert in his earlier reports had concerns about the mother, although her actions in terms of the younger son since 2015 are such that he now deposes that her capacity is adequate to good. It is not perfect parenting, but the mother is capable of caring for the younger son on a full time basis.
The single expert made significant criticism of the father’s capacity to parent the younger son. The single expert believes, and I accept, that the father has no capacity to parent on an unsupervised basis.
The father does not accept the expert diagnosis of the children’s health issues and argues with the experts who provide reports contrary to his views. He does not respect those experts.
I am not satisfied that the father is able to provide for the needs of the younger son, including his emotional and intellectual needs. He is not a suitable unsupervised carer, but is a manageable supervised carer provided that the supervision is strong as the father will test the limits of the supervision.
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 younger son is quite young and has significant health difficulties, to which I have alluded to earlier.
The conflict between the parents is significant and their dislike is significant.
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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother is the primary carer of the children. The father endeavours to be close to the children and desperately wants to take them out and give them ‘a boyhood’. In doing so the father demeans and belittles the mother and is unable to contain himself, as I have said earlier.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
The mother applied for a family violence order. That was granted by the police, but was subsequently discharged by a Magistrate. It is not a factor in the consideration of this matter.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
This is not a relevant consideration in these proceedings.
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;
The attraction of the mother’s approach is that it would not enable further proceedings. However, given all of the other factors I am more concerned about retaining some relationship between the younger son and the father given the younger son’s attraction to the father as set out in the notes from the Contact Service.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;
There are no other relevant facts or circumstances to be taken into account by the Court.
PARENTAL RESPONSIBILITY AND RESIDENCE
Both the Independent Children’s Lawyer and counsel for the mother assert that there ought to be an order for sole parental responsibility to the mother in respect of the younger son. I agree with that course.
I accept the submissions of the Independent Children’s Lawyer and counsel for the mother, in support of this assertion, that there is no communication between these parties, as they dislike each other, the father hates the mother and they have shown no ability to communicate in any effective way since 2012.
To put in place an order for other than sole parental responsibility would mean that no effective parental responsibility could be undertaken. I accept the submissions made on behalf of the Independent Children’s Lawyer and on behalf of the mother.
There is no issue as to where the younger son shall live.
TIME
The substantive issue in this matter is whether there ought to be no time or whether there ought to be limited time as can be provided by the Contact Service. I have decided that limited time is best for the younger son for the reasons which I have articulated earlier; whilst there is some risk to the child it is in contained circumstances. This will enable the child to know who his father is and maintain some form of relationship with him.
I reiterate the comments I made earlier and I am satisfied that this will protect the younger son against the risk of emotional abuse which the single expert raised in his later reports. This includes the father’s ongoing assertion that the mother is an abuser, his ongoing assertion that the mother attempted to poison the younger son, and his ongoing assertions that the mother cannot parent.
The mother is the more capable of these two parents and has facilitated time between the younger son and the father whereas the father has nothing positive to say about the mother.
GENERALLY
There was no issue that the father is able to send letters, cards, birthday and Christmas presents to the younger son and there will need to be an order that the mother provide a postal address to the father for this purpose. The mother conceded this.
There is no objection by the mother to the father having access to the children’s medical records and school records provided that is done through the medical practice and school rather than through any positive obligation on the mother to do so. I propose to make that order.
Having considered all of the relevant material I will make the orders as set out at the commencement of these reasons.
I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 8 September 2017.
Associate:
Date: 8 September 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Injunction
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Costs
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Procedural Fairness
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Remedies
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