Lyle and Keith
[2009] FMCAfam 661
•11 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LYLE & KEITH | [2009] FMCAfam 661 |
| FAMILY LAW – Parenting – intractable dispute – best interests of the child – drug testing & third-party monitoring – futile orders. |
| Family Law Act 1975, Part VII, ss.60B (a), 60CA, 60CC (2),(a), (3)(b), (c), (d), (e), (i), (4), (4A), 61DA, 65DAA |
| Goode v Goode (2007) 36 Fam LR 422 Commonwealth Parliamentary Debates (Senate Hansard) (27th March 2006) T. Altobelli, “A response to `A Cautionary Tale’: Learning to paint with a fine brush.” This paper was presented to the 8th Annual Family Law Intensive, Sydney |
| Applicant: | MR LYLE |
| Respondent: | MS KEITH |
| File Number: | CAC 4 of 2007 |
| Judgment of: | Neville FM |
| Hearing date: | 11 May 2009 |
| Date of Last Submission: | 11 May 2009 |
| Delivered at: | Canberra (Wagga Wagga sittings) |
| Delivered on: | 11 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mrs Dwyer |
| Solicitors for the Applicant: | Legal Aid NSW (on a duty basis) |
| Counsel for the Respondent: | Mr Groch |
| Solicitors for the Respondent: | Denniston & Day, Wagga Wagga, as agents for Jensen’s Solicitors, Lennox Head, NSW Jensen's Solicitors & Attorneys |
| Counsel for the Independent Children’s Lawyer | Ms Godtschalk |
| Solicitors for the Independent Children’s Lawyer | Robb & Associates |
ORDERS
UNTIL FURTHER ORDER, IT IS ORDERED THAT:
All previous Orders be discharged.
The Application in a Case filed by the Mother on 7th May 2009 is withdrawn.
The Mother will have sole parental responsibility for the child, [S] born in 1999.
[S] will continue to live with her Mother.
The Father is to spend time with [S] for a block period of four hours per fortnight, at times to be agreed between the parents in consultation with the Contact Centre, and or the Independent Children’s Lawyer, as follows:–
(a)With the first hour to be supervised at the Contact Centre;
(b)The middle two hours to be unsupervised, with the Father to inform the Contact Service 48 hours ahead of time of his planned activities with [S] away from the Centre; and
(c)The last hour to be supervised at the Contact Centre.
The Father undertake a drug urinalysis test within 21 days, noting that this test is not a precondition for spending time with [S] pursuant to the Orders above.
Liberty to apply is granted if the drug test pursuant to Order 6 proves positive for any illicit drugs other than marijuana.
Copies of any drug test results, or any other documents used in these proceedings, are restricted to the lawyers and Contact Centre only. Drug test results, and any other documents in these proceedings, are not to be divulged by the parties to anyone else.
Both of [S]’s parents will continue to work and liaise with the Contact Centre staff and do all such acts as recommended by them to assist the Mother in managing her anxiety about [S]’s unsupervised time with her Father.
It is requested that during the first hour the Father spends with [S], the Contact Centre monitor the sobriety of the Father and any other notable things, and if the Father is suspected of being drug and or alcohol affected, the staff of the Contact Centre reserve the right to terminate that contact session.
In the event that the Centre determines that Mr Lyle is not appropriately capable of spending time with his daughter, that time must not proceed, and no “make-up” time is to be provided unless agreed to by Ms Keith in writing.
The Mother is not to cancel unilaterally any scheduled visits for [S] and her Father, unless she provides a letter to the Court and the Contact Centre at least 48 hours prior, explaining why the visit is not able to go ahead.
The Father is not to take any non-prescription drugs or alcohol at least 24 hours before spending time with [S], or during the time he spends with her.
The Mother is restrained from following or interfering with the Father’s time with [S] and the Mother is to use her best endeavours to prevent other family members from doing the same.
Both parents are restrained from saying unkind or unpleasant things about the other to [S] or in her presence, or allowing any other person to do so.
Both parents are restrained from discussing these Court proceedings with [S] or showing her any documents related to these proceedings, nor allowing any other person to do so.
It is requested that the Independent Children’s Lawyer provide a copy of these Orders to the Contact Centre.
The matter be adjourned for further mention on 10th August 2009 at 9:30am at Wagga Wagga.
Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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 to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders and new attachment of consequences.
IT IS NOTED that publication of this judgment under the pseudonym Lyle & Keith is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 4 of 2007
| MR LYLE |
Applicant
And
| MS KEITH |
Respondent
REASONS FOR JUDGMENT
A. Introduction
In Swain v Waverley Municipal Council,[1] Gleeson CJ said, at [2]: “In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal.”
[1] (2005) 220 CLR 517 at p.519.
Formally, these proceedings concern Mr Lyle’s attempts to spend more, and preferably unsupervised, time with his 9 (almost 10) year old daughter, [S]. However, in the current proceedings, in part because of the length of time they have been coursing between this Court and regularly on appeal to the Family Court, a reasonable observer could be forgiven for thinking that the object of this particular litigation is precisely to exhaust the resources of the litigants, and of Mr Lyle in particular.
The contest between the parties could rather easily be seen as somewhat one-sided. Mr Lyle, who is the Father of [S], is a self-represented litigant who works in a [omitted]. Ms Keith, who is [S]’s Mother and with whom she lives, is a [omitted]. She is very actively represented by her resourceful solicitor, Mr Pellandine, who practises on the far north coast of New South Wales, more than 1200 kilometres from Wagga Wagga. His practise is obviously wide-ranging given that his client resides in Wagga Wagga, as does Mr Lyle.
That said, there has been an independent children’s lawyer in the proceedings since orders were made to that effect on 8th November 2007. More often than not, the independent children’s lawyer, who is in Albury, has briefed Canberra Counsel, Ms Godtschalk, for any of the substantive hearings.
I should also note at the outset that Mr Lyle has not assisted his case by either his refusal and or his inability to undertake any drug tests that have been ordered. He contends that because he continues to use marijuana, but never when [S] is with him, it would be a pointless exercise and one which, in any event, he cannot afford.
On 11th May 2009, I made yet more orders in these proceedings following a hearing while on circuit in Wagga Wagga. On that occasion, Ms Keith was represented by a local practitioner (Mr Groch) as agent for Mr Pellandine, Ms Godtschalk appeared on behalf of the ICL, and Mrs Dwyer, from the Legal Aid office in Wagga, appeared on behalf of Mr Lyle on a duty basis.
As I had done on previous occasions, I indicated at the time that reasons for those orders would follow. These are those reasons. They are, in fact, what should properly be described as the consolidated reasons for the orders of 31st March and 11th May. As I note later, the parties were advised in writing on 1st April that I would deal with both sets of orders in a single judgment that would be provided after the conclusion of the further hearing in Wagga Wagga in May. Given the long history of the matter, this seemed the more preferable course rather than traversing very similar ground in two separate judgments within a matter of weeks. As with previous orders, those made on
11th May are being appealed by Ms Keith. And also as with previous orders, such is the combative nature of the respondent’s side of the ledger that notwithstanding advice to all the parties that there would be reasons, one of the grounds of appeal is `the failure to provide reasons.’
B. An Excursus: The Contest in a Snapshot
Although a constant source of contention between the parties relates to Mr Lyle’s admitted use of marijuana and his inability/refusal to attend for drug testing, another issue highlights the energy invested in and the nature of the contest between the parties. It concerns the issue of signing a passport application for [S].
In my judgment of 8th May 2008, I noted Mr Lyle’s refusal to sign the passport application. I made orders that, in the event that this refusal continued, a Registrar of the Court would sign it pursuant to s.106A of the Family Law Act1975.
After some to-ing and fro-ing, the Registrar signed the application on 18th December 2008. This was notified in a letter from the Registrar to Mr Pellandine of the same date. I am not aware whether Ms Keith and [S] have in fact taken any overseas holidays, but that is beside the point.
Notwithstanding the discharge of the order regarding the passport application by virtue of the Registrar signing it in December 2008, point number 6 of the grounds of appeal lodged by Mr Pellandine on 27th April 2009 stated: “The Court failed to continue Orders 9 and 10 of the Orders of 8 May 2008 in regard to passport application procedures for the child.”
At the further hearing before me in Wagga Wagga on 11th May, I asked Mr Groch (who, as I have said, was appearing as agent for
Mr Pellandine on behalf of Ms Keith) specifically about this matter, in part to determine if the scope of issues in dispute could be even more confined than it was. As well, I confessed to some puzzlement about a ground of appeal in relation to an order that had been discharged because it had been fulfilled. I was helpfully informed that the ground of appeal in fact related to the anticipated refusal of Mr Lyle to sign another passport application form in five year’s time when the current passport expires.[2] Nothing like beating the rush and appealing something that has yet to take place - many years hence!
[2] See Transcript (11th May 2009) pp.5-7.
The facts of this aspect of the matter, in my view, neatly highlight the curious attention to detail, the prudential judgments made to promote or escalate, rather than to reduce, the litigation, the general level of bellicosity, and inevitable, consequential and significant consumption of legal resources that are regularly on display as to require no further comment.
C. Background
For the assistance of all, the following is an overview of the procedural and other history in this matter (it is, of course, taken from the Court file: very short mentions are generally omitted):
a)Proceedings were commenced in the Wagga Wagga Local Court in December 2006, at which time they were transferred to this Court.
b)The matter first came before this Court in March 2007. On that occasion a reportable family conference was scheduled for 10th July 2007, with the matter adjourned to 1st August of that year.
c)There was a brief mention on the adjourned date, and the matter went over until 15th August, when various orders were made regarding subpoenæ, and a one hour hearing for 11th September regarding parenting orders was fixed.
d)That one hour hearing was ultimately held on 12th September. Orders were made on that date to fix the substantive hearing in Wagga Wagga on 11th February 2008, for an updated family report to be prepared, for certain other procedural orders, and that Mr Lyle spend time with [S] for a block of four (4) hours every fortnight, with the first and last of those hours being supervised, the remaining two hours to be unsupervised. Mr Lyle was ordered to undergo drug and alcohol testing, as well as to undergo liver function testing.
e)There was a brief hearing on 2nd November as to whether an ICL should be appointed. On 8th November 2007, an ICL was appointed.
f)For all of the above Court events Mr Lyle was legally represented by Mrs Murrell from Farrell Lusher, solicitors of Wagga Wagga, or their agents in Canberra. Those lawyers withdrew from the proceedings on 27th November 2007. On that date I made further orders requiring that the drug testing previously ordered be complied with.
g)On Ms Keith’s application, but with no appearance by Mr Lyle, on 4th December I suspended the orders of 12th September in relation to [S]’s time with her Father, and in lieu thereof, I ordered that Mr Lyle’s time be slightly restricted to three (3) hours per fortnight and that it be supervised at the contact centre in Wagga.
h)On 4th December 2007, Mrs Dwyer had appeared as the ICL. As I understand it, some time thereafter, Mr Pellandine objected to Mrs Dwyer remaining in the matter as ICL because, at some time in the past, Mrs Dwyer had worked at the firm who had previously represented Mr Lyle. I do not understand her to have ever been involved in the matter with Mr Lyle. Mrs Dwyer’s withdrawal meant the appointment of a different ICL, the closest available being in Albury.
i)
On 11th February 2008, the trial was conducted in Wagga Wagga. Mr Lyle was self-represented, Mr Pellandine represented
Ms Keith, and Ms Godtschalk of Counsel appeared for the ICL.
j)I delivered my judgment on 8th May 2008. The orders made were as follows:
i)Until further order, the Mother will have sole parental responsibility for the child, [S] born in 1999.
ii)[S] will continue to live with her Mother.
iii)The Father is to spend time with [S] as follows:–
iv)For a period of two months:
(i)for a block period of four hours per fortnight, two hours of the time spent to be supervised, and two hours unsupervised,
(ii)such times to be agreed between the parties, and in consultation with the Contact Centre, and
(iii)the supervised time shall be at the beginning and end of the time together.
v)For a further period of two months:
(i)for a block of five hours per fortnight, two hours of the time spent to be supervised, three hours unsupervised,
(ii)such times to be agreed between the parties, in consultation with the Contact Centre, and
(iii)the supervised time shall be at the beginning and at the end of the time together.
vi)For a further period of two months:
(i)for a block of six hours per fortnight, two hours of the time spent to be supervised, four hours unsupervised,
(ii)such times to be agreed between the parties, in consultation with the Contact Centre, and
(iii)the supervised time shall be at the beginning and at the end of the time together.
vii)For a further period of six months:
(i)for a block period of six hours each fortnight, one hour to be spent supervised, five hours to be unsupervised,
(ii)such times to be agreed between the parties, in consultation with the Contact Centre, and
(iii)the supervised time shall be at the beginning and at the end of the time together.
viii)The Father will advise the Contact Centre 48 hours ahead of time of his planned activities with [S] away from the Centre.
ix)Both of [S]’s parents will continue to work and liaise with the Contact Centre staff and do all such acts as recommended by them to assist the Mother in managing her anxiety about [S]’s unsupervised time with the Father.
x)The Mother is restrained from following or interfering with the Father’s time with [S] and the Mother is to use her best endeavours to prevent other family members from doing the same.
xi)Both parents are restrained from saying unkind or unpleasant things about the other to [S] or in her presence, or allowing any other person to do so.
xii)The parties will attend mediation as recommended by Relationships Australia in Wagga Wagga, with both parties to contact the agency within 14 days of the date of these Orders to arrange for an intake assessment.
xiii)The Father is to sign all relevant and necessary forms to enable a passport to issue in [S]’s name, and that she be permitted to travel with her Mother overseas, provided only that Ms Keith provide Mr Lyle with an itinerary of any proposed travel at least four week’s prior to any such trip.
xiv)In the event that Mr Lyle does not sign all relevant documents to enable a passport to issue in [S]’s name, that pursuant to section 106A of the Family Law Act1975 the Court Orders that the Registrar of the Family Court is to execute an application for an Australian Passport in relation to the child [S] born 5 October 1999.
xv)The Father is to undergo drug and alcohol urinalysis testing once in the first week of every month, over the next twelve months, the results of which are to be forwarded to the Contact Centre.
xvi)The Mother will use her best endeavours to ensure all school reports and records for [S] are made available to the Father. She will inform him of any special activities (including concerts) to which parents are invited as soon as practicable. The Father is permitted to attend these activities provided that he gives the Mother 48 hours notice of his intention to do so.
xvii)The Independent Children’s Lawyer will advise [S] of these Orders.
xviii)It is requested that an updated family report be prepared in December 2008.
xix)The matter will be listed for further mention in Wagga Wagga in February 2009 on a date to be advised, to review the progress of these Orders.
k)Those orders were appealed. As I understand it, given the quite limited scope of the appeal, rather than expend always stretched appellate resources, and as a more expeditious course, on 14th July 2008, Finn J ordered that the appeal proper be stood over to a date to be fixed on the application of the solicitor for the mother. In the event that there was no such application within six months, then that appeal would stand dismissed. Her Honour then, by way of formal notation, requested the Principal Registrar of this Court to arrange for the matter to be re-listed before me to deal with the issue of drug-testing of Mr Lyle. (See the Orders of Finn J in Appeal No. EA 69 of 2008.)[3]
[3] In the course of her Honour’s brief judgment of 15th July 2008, at [16], in the light of Mr Lyle being unrepresented and attending by telephone, Finn J expressed some concern about whether he understood what was happening both in relation to the appeal and perhaps more so that the hearing before her Honour was, as Finn J observed, “… in fact a hearing of an application by the mother to extend time to appeal.” Respectfully, even with having the benefit of seeing both parties so regularly I frequently share her Honour’s reservations about Mr Lyle’s capacity always or fully to comprehend what is going on in Court. Indeed, Mr Lyle often gives the impression of being somewhat perplexed by all the process because he sees the task of everyone, including the Court, as being quite simple: that is, to decide when and how he can spend time with his daughter [S].
l)
On 29th August 2008, I made further orders in relation to
Mr Lyle’s drug testing and that until such time as those orders were complied with, his time with [S] would have to remain supervised. This was so notwithstanding the experienced family consultant’s (Ms Lang) evidence in February 2008 that continued supervised time between Mr Lyle and his daughter was ultimately not going to be a viable option in the long term, and also that the ICL has never sought that there be drug testing, for reasons set out later.
m)A further updated family report was scheduled for preparation, following a family conference on 15th December 2008.
n)The matter was listed for further hearing in Wagga on 9th February 2009. At that hearing, Mr Lyle was again unrepresented and Ms Godtschalk appeared again on behalf of the ICL. Somewhat surprisingly, there was no appearance by anyone on behalf of Ms Keith. Orders were made on the evidence essentially provided solely by the ICL and submissions by Ms Godtschalk. Those orders were as follows:
i)The Orders made on 29th August 2008 regarding drug and alcohol testing be discharged.
ii)Between the date of these Orders and 11th May 2009, the Father is to spend four hours per fortnight with the child [S] born 5th October 1999, with pick-up and drop-off to occur at the Contact Centre. It is requested that the Contact Centre monitor the sobriety of the Father and any other notable things during these changeovers.
iii)Order 3 of the Orders made on 8th May 2008 be suspended until further Order.
iv)The Father is not to take any non-prescription drugs or alcohol at least 24 hours before spending time with [S], or during the time he spends with her.
v)The matter be adjourned for further mention on 11th May 2009 at 9:15am in Wagga Wagga.
AND IT IS NOTED THAT the Father will not go fishing with [S] during the times he spends with her.
o)A short time after that hearing it came to light that Mr Pellandine had misunderstood some information from my Chambers, although there had never been any formal change in the listing from the scheduled date of 9th February 2009. But, in any event, it was because of that misunderstanding that he failed to appear at the 9th February hearing in Wagga.
p)Accordingly, as a matter of procedural fairness, a further hearing was scheduled, which took place on 26th February 2009. On that occasion, all parties attended by telephone: Mr Lyle from Wagga, Mr Pellandine from Lennox Head, and the ICL, Ms Robb, from Albury.
q)Written submissions were received as follows: from Mr Pellandine – 27th February; from Ms Godtschalk (on behalf of the ICL) – 16th March; from Mr Lyle – 19th March.
r)Orders were made on 31st March. They were:
i)All previous Orders be discharged.
ii)The Mother will have sole parental responsibility for the child, [S] born 5th October 1999.
iii)[S] will continue to live with her Mother.
iv)The Father is to spend time with [S] for a block period of four hours per fortnight, at times to be agreed between the parents in consultation with the Contact Centre, and or the Independent Children’s Lawyer, as follows:–
(i)With the first hour to be supervised at the Contact Centre;
(ii)The middle two hours to be unsupervised, with the Father to inform the Contact Service 48 hours ahead of time of his planned activities with [S] away from the Centre; and
(iii)The last hour to be supervised at the Contact Centre.
v)Both of [S]’s parents will continue to work and liaise with the Contact Centre staff and do all such acts as recommended by them to assist the Mother in managing her anxiety about [S]’s unsupervised time with her Father.
vi)It is requested that during the first hour the Father spends with [S], the Contact Centre monitor the sobriety of the Father and any other notable things, and if the Father is suspected of being drug and or alcohol affected, the staff of the Contact Centre reserve the right to terminate that contact session.
vii)The Mother is not to unilaterally cancel any scheduled visits for [S] and her Father, unless she provides a letter to the Court and the Contact Centre at least 48 hours prior, explaining why the visit is not able to go ahead.
viii)The Father is not to take any non-prescription drugs or alcohol at least 24 hours before spending time with [S], or during the time he spends with her.
ix)The Mother is restrained from following or interfering with the Father’s time with [S] and the Mother is to use her best endeavours to prevent other family members from doing the same.
x)Both parents are restrained from saying unkind or unpleasant things about the other to [S] or in her presence, or allowing any other person to do so.
xi)Both parents are restrained from discussing these Court proceedings with [S] or showing her any documents related to these proceedings, nor allowing any other person to do so.
xii)It is requested that the Independent Children’s Lawyer provide a copy of these Orders to the Contact Centre.
xiii)The matter will be listed for interim hearing in Wagga Wagga on 11th May 2009 at 9:15am, to review the progress of these Orders. It is requested that all parties are present on that occasion, noting that leave to attend by telephone will not be granted.
xiv)All affidavits to be relied upon at the hearing are to be filed and served no later than 27th April 2009.
xv)It is requested that each party prepare a Minute of Orders Sought to be filed or emailed to [email protected] prior to the commencement of the hearing.
xvi)Any additional subpoenas are to be made returnable no later than 30th April 2009, with leave granted for the Independent Children’s Lawyer to file more than 5 subpoenas, if this is necessary for updating material to be put before the Court.
xvii)Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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 to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders and new attachment of consequences.
s)On 1st April all parties were advised in writing as follows:
Thank you for the written submissions received from Mr Lyle, Mr Pellandine, on behalf of Ms Keith, and Ms Godtschalk of Counsel, on behalf of the Independent Children’s Lawyer. These written submissions were received after the oral submissions on 9th and 26th February.
I enclose a copy of his Honour’s Orders, made in Chambers on 31st March 2009. Because (i) of the nature of the Orders made, (ii) there is such a short time between now and the further scheduled interim hearing on 11th May in Wagga Wagga, and (iii) there have already been a significant number of judgments that canvass at some length the limited range of issues that are in dispute, so as not to burden the parties any further with what may ultimately be largely over-lapping reasons and material, his Honour will incorporate reasons for the current orders in those that will be done after the next hearing. Please note that that hearing will be at 9.15am. No telephone attendance will be allowed on that occasion.
Please take note of Order 17 of the interim Orders made by his Honour, and the Fact Sheet attached which sets out the obligations on the parties and the consequences which could flow in relation to any breaches or non-compliance of the Orders. His Honour has asked me to stress to the parties that any unilateral decision not to comply with the Orders made will be dealt with appropriately on the next Court occasion.
t)By letter dated 15th April 2009, Ms Keith wrote directly to my Chambers advising that [S] would not be made available for her time with her Father on 18th April and 2nd May. She wrote in similar terms to the Contact Centre in Wagga. The letter had been originally faxed directly to my Chambers. In that letter she said: “Please note that [S] will not be able to attend the abovenamed visits because: I am appealing to have the orders (dated 31 March, 2009) set aside. There were no `Reasons for Judgment’ given for the orders dated 31 March 2009. I will continue to offer supervised time for the father as has been in place for the last two months.” A copy of this letter was sent to Ms Keith’s solicitor, Mr Lyle, and to the ICL.
u)An appeal was lodged on 27th April 2009 of the orders made on 31st March. That appeal was withdrawn on 4th June 2009.
v)On 7th May 2009, an Application in a case was filed in this Court by Ms Keith seeking a stay of the orders of 31st March and the reinstatement of the orders of 29th August 2008.
w)The stay application was heard by me in the Wagga sittings of this Court on 11th May. Mr Lyle was represented by Mrs Dwyer, on a duty basis, Mr Groch appeared on behalf of Ms Keith as agent for Mr Pellandine, and Ms Godtschalk appeared on behalf of the ICL.
x)In the course of submissions on 11th May, the stay application was withdrawn and further orders were made. Mr Lyle gave further brief oral evidence in Court. He was cross-examined by Mr Groch, and by Ms Godtschalk. Ms Keith declined the invitation – which was not forced – to enter the witness box, notwithstanding that Ms Godtschalk indicated that she wished to ask her a question regarding future compliance with orders. Nothing was, or should be, drawn from her declining to give evidence.
y)Further orders were made on 11th May 2009. All present in Court were advised that reasons for the orders would be provided. The orders of 11th May provide as follows:
i)All previous Orders be discharged.
ii)The Application in a Case filed by the Mother on 7th May 2009 is withdrawn.
iii)The Mother will have sole parental responsibility for the child, [S] born 5th October 1999.
iv)[S] will continue to live with her Mother.
v)The Father is to spend time with [S] for a block period of four hours per fortnight, at times to be agreed between the parents in consultation with the Contact Centre, and or the Independent Children’s Lawyer, as follows:–
(i)With the first hour to be supervised at the Contact Centre;
(ii)The middle two hours to be unsupervised, with the Father to inform the Contact Service 48 hours ahead of time of his planned activities with [S] away from the Centre; and
(iii)The last hour to be supervised at the Contact Centre.
vi)The Father undertake a drug urinalysis test within 21 days, noting that this test is not a precondition for spending time with [S] pursuant to the Orders above.
vii)Liberty to apply is granted if the drug test pursuant to Order 6 proves positive for any illicit drugs other than marijuana.
viii)Copies of any drug test results, or any other documents used in these proceedings, are restricted to the lawyers and Contact Centre only. Drug test results, and any other documents in these proceedings, are not to be divulged by the parties to anyone else.
ix)Both of [S]’s parents will continue to work and liaise with the Contact Centre staff and do all such acts as recommended by them to assist the Mother in managing her anxiety about [S]’s unsupervised time with her Father.
x)It is requested that during the first hour the Father spends with [S], the Contact Centre monitor the sobriety of the Father and any other notable things, and if the Father is suspected of being drug and or alcohol affected, the staff of the Contact Centre reserve the right to terminate that contact session.
xi)In the event that the Centre determines that Mr Lyle is not appropriately capable of spending time with his daughter, that time must not proceed, and no “make-up” time is to be provided unless agreed to by Ms Keith in writing.
xii)The Mother is not to cancel unilaterally any scheduled visits for [S] and her Father, unless she provides a letter to the Court and the Contact Centre at least 48 hours prior, explaining why the visit is not able to go ahead.
xiii)The Father is not to take any non-prescription drugs or alcohol at least 24 hours before spending time with [S], or during the time he spends with her.
xiv)The Mother is restrained from following or interfering with the Father’s time with [S] and the Mother is to use her best endeavours to prevent other family members from doing the same.
xv)Both parents are restrained from saying unkind or unpleasant things about the other to [S] or in her presence, or allowing any other person to do so.
xvi)Both parents are restrained from discussing these Court proceedings with [S] or showing her any documents related to these proceedings, nor allowing any other person to do so.
xvii)It is requested that the Independent Children’s Lawyer provide a copy of these Orders to the Contact Centre.
xviii)The matter be adjourned for further mention on 10th August 2009 at 9:30am at Wagga Wagga.
xix)Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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 to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders and new attachment of consequences.
z)An appeal against those orders was lodged on 4th June on behalf of Ms Keith by Mr Pellandine.
C. Submissions: August 2008 – March 2009
I will confine remarks here to the most recent submissions. They include the written submissions that were received from the parties, and the ICL, in February and March, this year, as well as the oral submissions that were made most recently in Wagga Wagga last month. Given all that has taken place up to this point, I will be as brief as circumstances and issues permit.
Because drug-testing by Mr Lyle is a central issue in the contest, especially from Ms Keith’s perspective, a convenient starting point is the submissions by the ICL dated 5th August 2008. After noting that drug-testing was not sought at the trial by the ICL, in her submissions, Ms Robb firstly noted that, as recorded in my judgment of May 2008, I accepted that the risk to [S] from her Father’s drug [and alcohol] use was `slight if not remote’ and that “the Contact Centre provided the best safeguard to protect [S] from any small risk to her relating [sic] from the father’s alcohol or drug usage because it was the gatekeeper for contact.”
Ms Robb’s written submissions then provided:
The ICL is of the view that the preferable course is to accept that Mr Lyle is recovering from various substance abuse problems which have not impacted on [S] to date and that the Contact Centre as the gate keeper is a sufficient safeguard and leave it to him to establish the necessary evidence to increase his time with [S] at a final hearing next year by producing negative tests and other evidence of recovery.
Mr Pellandine had provided very detailed written submissions on 5th August 2008, which dealt with drug testing, from the perspectives of (a) Finn J’s orders of 15th July 2008, (b) the criminal law, and (c) Mr Lyle’s consistent non-attendance for drug-testing. In the course of those submissions, Mr Pellandine observed helpfully, at par.7: “There is no dispute that the relationship between the Father and the child, [S], is good in the context of the Contact Centre and if it could be ensured that there is no risk of harm then all parties would agree that it would become more meaningful for the child if supervision was reduced.”
In his brief written submissions filed on 27th February 2009 on behalf of Ms Keith, Mr Pellandine noted that Mr Lyle had not done any drug tests as ordered by the Court, nor had he undertaken the liver function tests, also ordered. He made other submissions about Mr Lyle [allegedly] refusing mediation at Relationships Australia, not attending on Ms Lang, not giving 48 hours notice for visits outside the Contact Centre, sending “threatening text messages” to Ms Keith, and that he had not called [S] on her home telephone line “all year 2008-2009.”
Mr Lyle provided written submissions, which were filed on 19th March 2009. He sought to explain or answer the matters canvassed by Mr Pellandine. In the course of them he said: “My failure to comply with the drug and alcohol testing has been explained. The fact that I admit to smoking Indian Hemp and would show up on any test given and does not affect [S] in any way. Thus failing to prove how I am physically and mentally on the day of our visit and the workers of the C.S.S would not permit the visit to take place if I was affected by drugs or alcohol. Thus making the C.S.S. The [sic] gatekeepers to our visit.”
Mr Lyle further submitted: “With the improvements I have made to my life, being employed, having a permanent residence and a parenting course, the age of my daughter, the years of supervised visits without incident should go towards unsupervised visits so that my daughter and I can have a more fulfilling and growing relationship.”
At the conclusion of brief written submissions filed on behalf of the ICL on 16th March 2009, Ms Godtschalk said: “It is quite clear that the mother has difficulty accepting any possibility of unsupervised contact for [S] with her father but it is submitted that further independent evidence will assist the court to make a determination in [S]’s best interests. [S] will be 10 this year and will not be able to remain at the Contact Centre indefinitely.” The bulk of Ms Godtschalk’s submissions were otherwise directed to providing Mr Pellandine with an opportunity to address the Court following his non-attendance at the hearing in Wagga in February, to which I have already referred.
D. Evidence & Submissions: May 2009
Evidence: The most recent evidence before the Court was in three forms: (a) the up-dated Family Report of Ms Lang, dated 13th January 2009; (b) oral evidence from Mr Lyle; and (c) the Observation Notes from the Children’s Contact Service produced on subpoena.
Summarily stated, the following may be observed. First, in Ms Lang’s further Report in February this year, she noted Ms Keith’s concern about [S]’s safety in her Father’s care and Ms Keith’s need for reassurance in this regard. She also noted that supervised time at the Contact Centre provides Ms Keith with the reassurance she seeks and causes her the least emotional conflict.[4]
[4] See Ms Lang’s most recent Report, par.18.
In the same place, Ms Lang also noted the range of difficulties from Mr Lyle’s past, including substance misuse, and the positive movement in his life with maintaining employment for the last eighteen months, and his regular time with [S] over many years. She also noted that persons in Mr Lyle’s situation can be vulnerable to relapse in alcoholism in times of stress. She opined that in addition to drug and alcohol testing it might benefit Mr Lyle to undergo a psychological assessment as a means of highlighting potential areas of vulnerability. These, she said, might assist in developing strategies “to better ensure ongoing emotional well-being and to provide Ms Keith with a measure of reassurance that [S] will be safe in his care.”[5]
[5] Quite properly, Ms Lang’s focus was primarily on relational matters. So far as I am aware, she is not aware of Ms Keith’s improper obtaining of records concerning Mr Lyle and her equally improper distribution of them. Such matters are canvassed in some detail in the judgment in these proceedings in May 2008.
In his sworn evidence in Court, Mr Lyle maintained his position that (a) yes, he did regularly take Indian hemp, (b) he did not take any other drugs, (c) his relationship with [S] was very good, and (d) nothing he says or does will alleviate Ms Keith’s concerns. He also maintained the position that taking a drug test would not prove anything, other than that he takes the drug which he has admitted taking. It would not establish anything about how he was or is at any particular time that he spends with his daughter. He has consistently maintained that he does not take any drugs while he spends time with [S] and that his use of marijuana does not affect his capacity to care for her, especially given how limited his time is with her.
He confirmed that he continued to work at [E] in Wagga as the kitchen supervisor, and has done so for the last 18 months. He works four days per week, for a total of 30 hours. He confirmed that he had never been turned away from work because he was affected by either drugs or alcohol. He also confirmed that he had never been turned away from the Contact Centre because he was affected either by alcohol or drugs. This is corroborated by the notes from the Contact Centre, to which I refer shortly. He confirmed that he smoked about one gram of marijuana per fortnight.
He confirmed that he spent approximately $25.00 per fortnight on marijuana, and approximately $50.00 per week on alcohol. He confirmed that he never smokes marijuana in the days before he sees [S].
Mr Lyle confirmed that he privately rents an apartment in Wagga, which is regularly inspected by the real estate agent. He confirmed that he has had no involvement with the police since these proceedings were last before the Court in May 2008. He said that, so far as he was aware, [S] knew nothing about his marijuana use.
Finally, he confirmed that the unsupervised time with [S] last year, sandwiched as it was between supervised time before and at the conclusion of that time by the Contact Centre, went very well.[6] He also agreed to undertake one drug test, the object of which is to confirm his evidence that he does not take any drugs other than marijuana.
[6] Mr Lyle’s evidence is at Transcript (11th May 2009) pp.17-27.
Again, by way of summary, the following may be gleaned from the Observation Notes from the Children’s Contact Service. These were formally tendered by Ms Godtschalk.
First, for a very significant period of time all observation notes from the Contact Centre record a very good and close relationship between Mr Lyle and [S]. They consistently have entries such as: “relaxed and easy going, physical closeness and tickling,” “SC [subject child] played “hide & seek”, she jumped into NRP’s [non resident parent’s] arms once he found her,” “card games, word games, tennis puzzles, enjoyed food brought by NRP. Picnic outdoors,” “giggles and laughter were heard throughout the visit.”
And in relation to one of the occasions when there was some unsupervised time outside the Contact Centre last year, the Notes record [the entry is for 31st May 2008]: “SC appeared happy on arriving back to CCS, staff asked SC did she enjoy her walk with NRP. SC replied that she had a good time. SC and NRP continued with the visit at CCS for 1 hour.”
Two other matters of significance are recorded in the Observation Notes. First, prior to the trial in Wagga last year, the ICL contacted the Contact Centre. Among other things canvassed was the Centre’s capacity to monitor Mr Lyle’s sobriety and whether he was affected by drugs. The Notes of 11th February 2008 state: “ICL sought reassurance that CCS would not proceed with visit if parent appeared under the influence of alcohol or drugs, which I confirm would be the case.” [Emphasis added.]
Secondly, on 10th January 2009, the Notes record:
NRP indicated he was prepared to continue with supervised visits at present. NRP expressed his reluctance to pursue unsupervised contact with SC stating two reasons: * NRP not prepared to undergo testing as he still smokes occasionally and says he will not be able to obtain clear results. NRP said that he keeps stressing the point that the best way to assess his appearance is when he presents at CCS for the visit, noting CCS strict policy in relation to that. NRP believes that if orders stipulated that the urinalysis results were to be at permissible level he wouldn’t have any problems to comply with that. I’ve discussed with NRP about the implications this could have for progression into unsupervised contact and overnight visits. NRP currently doesn’t have a legal representation, stating that he could not afford it. I suggested he enquired with Legal Aid. * NRP concerned about SC’s wellbeing, NRP does not want SC to be again subjected to the unpleasant experiences like previously when unsupervised contact was exercised, NRP referring to RP’s anxiety and actions in relation to the process and impact on SC. We have explored that at some length.
These Notes speak for themselves. Nor were they challenged either in February or May this year when the matter was before me. The “incident” to which Mr Lyle alludes or refers in this last note is set out in my judgment of May 2008 and is recorded at some length in the Notes of the Contact Centre when Ms Keith disrupted the time between [S] and Mr Lyle. The Contact Centre was extremely concerned about her actions at the time and reported them appropriately.
Submissions: My focus here is essentially on the most recent submissions when the matter was last before me in Wagga Wagga on 11th May. Submissions were brief. Given the frequency with which the matter returns to court, this was unsurprising. For his part, Mr Groch focussed on Mr Lyle’s refusal to undergo drug testing and his capacity to pay for them, albeit saving up for those tests. These submissions were perfectly reasonable and unsurprising.
For her part, Mrs Dwyer argued that because childhood was for a finite period, and in this case, it was going fast with very limited time between father and daughter, she was concerned that Ms Keith had a “stranglehold on the relationship” between Mr Lyle and [S].[7] Mrs Dwyer was concerned that, in effect, [S] was being punished by, or for, the mistakes of her parents. Using her own words, Mrs Dwyer’s principal submission was as follows:
… the foremost thing the Court has to consider is the evidence that everything for [S] with her Father, every interaction has been a positive one. In fact the only negative interactions that have occurred at the contact centre have resulted from Ms Keith’s actions and no drug tests, no assessment is going to replace that very direct evidence that your Honour has about her relationship with her father being a positive one and the need for it to move forward.[8]
[7] I should also note that Mrs Dwyer advised the Court that Mr Lyle had now applied for legal aid. Obviously, if his application is granted he is likely to be legally represented in future litigation with Ms Keith.
[8] Transcript (11th May 2009) p.30.
In my view, the only cavil with this submission would be that there remains the Court’s protective responsibility in relation to [S]. Given the limited scope of Mrs Dwyer’s involvement in the matter, this should not be taken as a criticism. And in any event, the protective responsibilities to which I have referred (on which more shortly) can, in my view, be exercised by the Children’s Contact Centre. As already noted, the Centre has confirmed its willingness and capacity to undertake such a role. It would also appear that there has never been an objection to the Children’s Contact Centre either supervising or monitoring Mr Lyle until very recently. Mr Pellandine seems to have raised only of late, as a new issue, the Contact Centre’s competence to provide appropriate monitoring of Mr Lyle’s time with [S], notwithstanding the Centre’s agreement and stated capacity to do so.
Mrs Dwyer readily acknowledged, in her words, that neither party came to Court with `clean hands.’ She submitted that the Court should [again] speak to both parties about compliance with orders. Mrs Dwyer also noted that, strictly speaking, Ms Keith was in contempt of Court. It appeared that the only reason no contravention application had not been filed was because Mr Lyle had not been legally represented.
Ms Godtschalk also addressed the Court in relation to Ms Keith’s breach of orders. I will not comment further on that side of things. Ms Godtschalk’s submissions in relation to [S]’s time with her Father, in February and May this year, as well as at the trial in February 2008, summarily stated, are as follows: (a) drug testing will only confirm what Mr Lyle has admitted, (b) drug testing will not establish Mr Lyle’s capacity to care for [S] when she is in his “care” on any given occasion, (c) the best, regular assessment of Mr Lyle’s capacity to spend time with his daughter would be provided by the staff at the Contact Centre, and (d) Mr Lyle’s relationship with [S] has been consistently very good, with no untoward incidents, but that the relationship needs to grow. However, the capacity and circumstance for that growth are significantly inhibited if the only venue and opportunity for time between Father and daughter remains at the Contact Centre.[9]
[9] In many respects, part of the implied premise or principle of Ms Godtshcalk’s submissions is that any order for drug testing would essentially, and in fact, be futile and that the Court should not make futile orders. When on the Federal Court, Allsop J recently, albeit briefly, discussed this judicial principle in Humane Society International Inc v Kyodo Senpaku Kaisha, [2004] FCA 1510. At [70], his Honour said: “The Court will not make futile orders. Whether or not they are futile may depend upon many matters, including but far from limited to the attitude of persons who are not present before the Court.”
My only cavil with these submissions is that a drug test (even a one-off test) will, at least, rule out (or confirm) that he does not use any drugs other than marijuana.
E. Legal Principles
Procedurally, the Full Court decisions in Goode v Goode and Keach & Keach,[10] determine how the Court should approach the determination of the issues before me – limited though they are in this matter. Indeed, the issues of Mr Lyle’s time and the circumstances in or under which [S] spends it with him, according to what is in [S]’s best interests (s.60CA), have been the principal issues since proceedings began.
[10] (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and (2007) FLC ¶93-353 at [24] ff respectively.
Although her comments were made in a relocation case, Brown J’s summary in Mazorski v Albright,[11] provides a helpful summary of the Court’s responsibilities under Part VII of the Act. Her Honour’s not infrequently cited “twin pillars” description, of children having a meaningful relationship with both parents and the need to protect children from physical and psychological harm, neatly summarises the general principles that are in tension in these proceedings.
[11] (2007) 37 Fam LR 518 at [3] – [6].
There is no dispute that [S] and her Father have a good and close relationship. Given the circumstances that surround this young girl, this is remarkable. In this respect at least, commendation should be given to both parents. Thus, there is no issue concerning the fulfilment of s.60B(a) and s.60CC(2)(a). The questions relate more to (a) how the Father-daughter relationship may be nurtured in the very constraining circumstances that constantly prevail, and (b) how to ensure that, to the extent necessary, [S] is protected from any adverse situation that might arise when in her Father’s care in the event that he has taken any drugs.[12] Apart from some comments made later, I do not see, at this stage, that any determination, or orders, should be made in addressing Ms Keith’s anxiety. In part, this is because she consistently presents in Court as a confident, determined - and therefore not overly anxious - parent.
[12] Because Mr Lyle has never sought any change to Ms Keith having sole parental responsibility in relation to [S], nor would it be in her best interests in any event, formally s.61DA has no work to do in this case. And, given the very limited time sought by Mr Lyle, s.65DAA also is otiose in these proceedings.
It would appear that [S] would like to spend more time with her Father. For example, in her most recent Report (of January 2009), Ms Lang referred to [S] commenting that her time with her Father at the Contact Centre was “good.” Ms Lang also noted some differing comments from [S]. For example, as recorded by Ms Lang, [S] said that “me and Dad are planning to go to the beach or the Botanical Gardens.” The beach, she said, was on a river, with lots of sand and that “there are walks you can do.”
On the other hand, when Ms Lang asked more directly about [S] changing routine and spending time with her Father outside the Centre, she said that she didn’t know, because she had “been coming to the Centre for a long time – I’m used to it.” [S] went on to observe [par.15 of the Report]: “if Dad had his own place, I’d spend time with him there as well.” [S] remarked to Ms Lang, and not for the first time (as I recorded in my judgment of May 2008), that she was concerned about seeing her Mother worried. Indeed, apart from her statements to Ms Lang of her concern, and her one-off action last year to interrupt [S]’s short period of unsupervised time with her Father, there is no evidence at all before the Court about the nature, degree or even general extent of her anxiety. One would have thought that if her anxiety or concern was so great she would have been advised long ago to undertake some therapy, or at least to provide the Court with appropriate evidence of her condition. I am not aware that litigation is a recommended panacea for anxiety or similar maladies.
Ms Lang also noted Ms Keith’s promotion of [S]’s “sense of autonomy, self expression and competence.” While these important traits, so it would seem, are not referrable in any way to [S]’s relationship with her Father, her confidence and competence are factors that, to an appropriate degree, the Court should consider, if not immediately then in the not too distant future, when considering any sense of ‘risk’, real or perceived, by Ms Keith. It would at least seem to be the case that the fears and anxieties that inhabit Ms Keith’s life in relation to
Mr Lyle, and of which [S] is quite aware, have fortunately not yet been transferred to [S] – except to the extent that [S] is worried about her Mother’s anxiety.
For the purposes of s.60CC(3)(b), I have already addressed the extremely close relationship between Ms Keith and her daughter, and the good relationship between Mr Lyle and his daughter.
Likewise, in relation to s.60CC(3)(c) & (i), the facts speak for themselves. Mr Lyle’s time with his daughter is limited by the persistently expressed fears and anxieties of Ms Keith, on the one hand, and Mr Lyle’s equally persistent refusal to undergo drug testing, for the reason (already noted) that he admits to smoking marijuana, all of which have led to his time with [S] essentially being supervised.
In my view, s.60CC(3)(d) and (e) have no application in this matter, save that Mr Lyle has not exercised telephone time with [S]. On its face, this aspect does not seem to loom large on anyone’s horizon.
Given that [S] lives with her Mother and spends so little time with her Father, and on the basis of all the evidence that has been presented in this matter over its significant history, there is no issue about
Ms Keith’s capacity to provide for all of [S]’s needs. For the same reasons, there have never been issues raised concerning [S]’s maturity, sex, life-style and background, save that as she grows older the opportunity and capacity for her relationship with her Father also to grow will, in all likelihood, be somewhat curtailed if all time spent remains at the Contact Centre.
Except for a past history – now quite some time ago – that is retailed in the judgment of May 2008, and which does not involve [S], there are no issues in relation to violence.
As for the order least likely to minimise on-going litigation, the Court is faced with the energetic challenge to any and every order with which Ms Keith does not agree, which would be any order for time for [S] to spend with Mr Lyle away from the Contact Centre, and while-ever he continues to admit to smoking marijuana but refuse to under-take drug testing. On the other hand, although unlikely to bring any contravention or contempt proceedings against Ms Keith, either because he is not legally represented or he does not otherwise have the wherewithal to prosecute such proceedings, he will maintain (or be embroiled in) the contest to gain increasing - but still rather limited - time with [S].
F. Observations & Determination
The statutory touchstone for this case, as for all parenting orders, is s.60CA, which provides that in deciding “whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” This is also to say that the orders in this case must not place either Mr Lyle’s desire to spend more, and or unsupervised, time with [S], or the palliation or appeasement of Ms Keith’s well developed expression (as opposed to manifestation) of anxiety about [S] spending time with her Father, as paramount and above those of [S]’s interests. To some degree, the latter seems to have been a factor in the considerations of Ms Lang.[13]
[13] As previously noted, Ms Lang refers specifically to Ms Keith’s anxiety and the reassurance she requires, at par.18 of her most recent Report dated 13th January 2009.
If one was to encapsulate the compass within which the decision about orders that are in [S]’s best interests should be made, it might come down to the choice between Ms Lang’s recommendation about drug-testing for Mr Lyle and Ms Godtschalk’s consistent submissions that (a) drug-testing will only confirm what is known, namely that Mr Lyle smokes marijuana, and (b) “drug testing would not be a reliable indicator of the father’s sobriety at contact, nor his ability to care for his daughter unsupervised.”[14]
[14] This submission is taken from Ms Godtschalk’s written submissions that were filed on 16th March 2009.
In my view, without some drug-testing at least to confirm that there are no other drugs being taken by Mr Lyle, I do not see that any extended unsupervised time with his daughter should be permitted. Having agreed to undertake such a test, Mr Lyle must attend for it. Until he does, and it is confirmed that no other drugs are being consumed, time must remain essentially at, and otherwise monitored by, the Contact Centre.
That said, accepting the unchallenged evidence from the Contact Centre that Mr Lyle’s behaviour and time with [S] have been uneventful and good quality for such a significant period of time, I accept the submission on behalf of the Independent Children’s lawyer from Ms Godtschalk that the best indicator and the most appropriate monitor of Mr Lyle’s sobriety and capacity to spend time with [S] are the professionals employed by the Contact Centre. Given that the Centre has confirmed its willingness and capacity to provide this monitoring, and that they obviously know Mr Lyle and [S] very well from long engagement with them, in my view, a short regular period of time away from the Centre with her Father is in [S]’s best interests.
In this respect, I prefer the course consistently recommended by
Ms Godtschalk, on behalf of the Independent Children’s Lawyer, to that of Ms Lang.
Thus, there will be an order for four (4) hours of time per fortnight for [S] to spend with her Father, the first and last hour of which is to be at the Contact Centre in Wagga Wagga. Those at the Centre are requested to continue to monitor Mr Lyle as to his sobriety or any indication that he is under the influence of any substance that may inhibit his capacity to spend time with and care for [S] while she is with him. In the event that the Centre determines that Mr Lyle is not appropriately capable of spending time with his daughter, that time must not proceed. No “make-up” time is to be provided unless agreed to by Ms Keith in writing.
A few concluding observations are apposite. First, having regard to s.60CC(4) and s.60CC(4A), and having regard to what has already been said in the context of a consideration of s.60CC(3)(c) and (i) in the light of the totality of the evidence and the regularity of Ms Keith’s litigious history, one would have to say that Ms Keith has done little to facilitate or to promote [S]’s relationship with her Father. Indeed, she continues to do everything in her power to resist anything other than acquiescing to [S] having supervised time with her Father. And as I have also noted, Mr Lyle does not aid his cause by not having taken any drug tests. In this regard, I should note Mr Lyle’s not unreasonable observation made to Ms Lang that another reason he has not done the drug tests is because, on Ms Keith’s past actions in improperly distributing information to his employer and others, he would fear her doing the same again.[15]
[15] See Ms Lang’s Report of 13th January 2009, par.7.
Ms Keith refuses to acknowledge either (a) that there has been any change in Mr Lyle’s life, such as stable, permanent employment, (b) his consistent, stable living situation, or (c) that he is capable of any change. The notes and records of the Contact Centre cut no ice with her in terms of them showing consistency and appropriateness of behaviour by Mr Lyle towards [S]. They matter not a jot. Indeed, Ms Lang records that Ms Keith continues to spend some time with Mr Lyle’s estranged and much older children from a different relationship.[16]
It may be that her association with them continues her concern and focus on the past of quite some time ago, and unhappy and concerning times with Mr Lyle.
[16] Ibid., par.12.
If one were to speculate, and it would only be speculation, one might suspect that Ms Keith’s belligerence or overt opposition towards
Mr Lyle stems, to some degree at least, from her own conflicted situation of, on the one hand, genuinely delighting in the child of the relationship, [S], yet on the other hand, her almost abject disbelief that she once had a relationship, of whatever kind and for however long, with Mr Lyle. Thus, while she is genuinely grateful and her life wonderfully enriched by [S], she otherwise seeks to distance if not almost purge herself, in an almost cathartic way, from Mr Lyle and from ever having had a relationship with him. In almost every respect she seeks to quarantine [S] from (and her time with) him. It is almost as if her angst about her past relationship with Mr Lyle grows by the day. Moreover, unfortunately, given the regularity, breadth and strength of legal challenge, it also seems clear that Ms Keith’s legal advice has assisted in fomenting her angst and promoting the contest. Certainly, there is no sign, let alone evidence, that anything has been done to palliate her anxiety. As I have already observed, one would have thought, or at least hoped, that some assistance would have been sought to deal with her disquiet. But as I have already noted, Ms Keith has presented throughout the many aspects of the proceedings, not as some angst-ridden Mother, but rather as a most thoughtful, controlled, and deliberate person. It may actually be the case that her concern is as much (or perhaps more so) about having her most precious possession ([S]) out of her care and control as it is about her mistrust of Mr Lyle.
In many respects, it is a classic case of immovable force (Ms Keith and Mr Pellandine) meeting an immovable object (Mr Lyle). Against the implacable team of Ms Keith and Mr Pellandine, Mr Lyle’s only response is essentially one of passive resistance. One hesitates to speculate the level of conflagration that would have ensued if Mr Lyle had been legally represented and met Ms Keith’s regular challenges with treatment in kind. Among other things, presumably, on the basis of the kinds of points raised on behalf of Ms Keith, Mr Lyle’s legal representative would/will be able to raise grounds of contention (either on appeal or at first instance) that Ms Keith will deny him time with [S] on her 15th birthday – and beyond.
In my view, it is reasonably clear that Mr Lyle recognises the loss in his life of having little or no relationship with his older children from an earlier relationship. It seems to have fortified him to do whatever he can to ensure that he does not impair let alone risk losing his relationship with [S]. This is at least verified by the consistent observations by the Contact Centre of his appropriate interaction with [S] over a significant period of time. In short, he seems to recognise that this is his last chance. Indeed, he acknowledged that he had failings, especially in the past, but he was confident that [S] would be much stronger than he was (and is) in dealing with life’s trials and temptations.[17] However subtle or even inadvertent, this could reasonably be taken to be his acknowledgment of the splendid job
Ms Keith has done in raising [S].
[17] See Transcript (11th May 2009) pp.19-20.
One final matter, perhaps somewhat procedural, needs to be noted. Following the orders made in February this year, and again following those made last month in Wagga, all parties were advised that reasons would follow. Notwithstanding this advice – in the first case given in writing by my Chambers (as noted above), in the second case, confirmed in open Court – Mr Pellandine has listed among the grounds of appeal (i) the failure to provide reasons, and (ii) the failure to consider the recommendations or Report of Ms Lang. As a matter of fact, and law, whether I have done so is a judgment for the Full Court to make. If, however, these particular grounds of appeal are intended to cast doubt on the word of this Court as to whether it will provide reasons for orders made, especially given the history of, and consumption of legal resources by, these proceedings, it is a remarkable approach. It borders on a slight, if not a direct insult, to the word of this Court to do what it said it would do. But, as with all matters on appeal, they are for adjudication by the Full Court.
G. Conclusion
From what has been said, in my view it is clear, as it was in May last year, that the Court has to balance the protective responsibilities towards [S] against those principles in the Act which properly seek to foster her relationship with her Father.[18]
[18] Cf. the comments of Carmody J in not infrequently cited comments, albeit in language that Parliament has formally decreed to be archaic if not obsolete, in W and G (No 2) (2005) FLC ¶93-248. In that case, his Honour said, at [45]:
Australian family law is unashamedly pro-contact. Consequently, this court will bend over backwards to establish or preserve a worthwhile relationship with the poorest of parents provided adequate protective measures can be put in place to prevent any relevant risks. This approach is based on the assumption that a father is much more than the worst thing he has ever done.
And a little later in the same judgment, at [48], his Honour said:
The starting point when contact is in issue is that there is a benefit for children in having a meaningful relationship with both of their parents and that for most children contact with a non-resident parent is important to their welfare and development in both the short and long term.
In the course of the Second Reading Speech that was tabled in relation to the Family Law Amendment (Shared Parental Responsibility) Act2006, while still accenting the best interests of the child as the paramount consideration, the Minister said: “The Government wants to change the culture of family breakdown from litigation to cooperation.”[19]
[19] Commonwealth Parliamentary Debates (Senate Hansard) (27th March 2006) p.78.
Unfortunately, that object is far removed from sight in this matter. Indeed, as I have shown, Ms Keith’s actions are, by and large, pre-emptive. As already noted, the matter has got to the stage where appeal points are raised by Ms Keith’s experienced lawyer in relation to actions that are anticipated five (5) years hence, namely the anticipated refusal by Mr Lyle to sign a pass-port application.
All the while, [S] grows older, the clock is running down for the time within which Mr Lyle can develop his relationship with his daughter, and the parties continue to contest: one very actively, the other passively. The impact on a child, at some stage, of such conflict, is well documented. The work of Professors McIntosh and Chisholm is perhaps the most regularly cited labour in this regard, albeit in a slightly different context to the circumstances in this case.[20] And of course, while-ever the litigation rages, the dust of it will cloud the vision of the parties, obscure what is in [S]’s best interests, and keep open wounds that are not allowed even to begin to heal. Everyone loses, [S] most especially.
[20] J. McIntosh and R. Chisholm, “Shared Care and Children’s Best Interests In Conflicted Separation: A Cautionary Tale from Current Research,” (2008) 20 Australian Family Lawyer 3-16. See also the helpful observations in R. Chisholm, “The meaning of “meaningful”: Exploring a key term in the Family Law Act amendments of 2006,” (2008) 22 Australian Journal of Family Law 175, and R. Kaspiew, “Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation,” (2007) 29 Sydney Law Review 131.
As previously indicated, the orders of 11th May 2009 were made not by reference to Mr Lyle’s consistent and understandable desire to spend more and unsupervised time with his daughter. Nor were they made by specific reference to Ms Keith’s highly cultivated and, at least as far as Mr Lyle is concerned, unbridled angst. Their respective and competing interests were considered, as they always have been. However, my statutory responsibility is governed by s.60CA of the Act, which places [S]’s best interests as paramount. The orders made on 11th May, in my view, were and are in [S]’s best interests.
Notwithstanding certain ascetic practices that it imposes, litigation is not a life-style choice that is generally renowned to promote a life of virtue or happiness. At some stage, [S]’s parents (and their legal advisers no less) will have to re-assess their approach (a) to life, (b) to their relationship with [S] and that of the other parent, and (c) to this on-going litigation. The sooner that this consideration occurs with a focus on [S]’s best interests, and on strategies that will minimise conflict, anxiety (real or confected) and curtail litigation, as well as a focus on the future rather than persistent attention to the past, the better off everyone will be – especially [S]. In this regard, the comments and observations of Gummow and Callinan JJ in U v U are apposite.[21] In their joint judgment, their Honours said, at [92]: “The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[22] Although the context of this statement relates specifically to mobility and relocation, the more fundamental principle relates to life-time parental obligation, responsibility, and ultimately, sacrifice. In my view, it has wide application.[23]
[21] (2002) 211 CLR 238.
[22] Gleeson CJ agreed, at [1], with the joint judgment of Gummow & Callinan JJ.
[23] Earlier this year I commented at some length on the various kinds of virtue that separated parents ought to consider cultivating with a view to minimising conflict for the sake of their parental responsibilities. See Monds & Mullan [2009] FMCAfam 58.
I am no less concerned about the risk of this on-going litigation, and Ms Keith’s anxiety and conflict with Mr Lyle, impacting on [S]. The risks to children from parental conflict are well documented in the academic literature, to some of which I have referred.[24] It is also recorded in the cases. The judgment of Dame Elizabeth Butler-Sloss P in In re L (A Child) (Contact: Domestic Violence) provides a helpful summary of the essential findings of a report prepared for the UK Court of Appeal.[25]
[24] In addition to the articles already cited, see Dr T. Altobelli, “A response to `A Cautionary Tale’: Learning to paint with a fine brush.” This paper was presented to the 8th Annual Family Law Intensive, Sydney, and was, in effect, a response to the article by Professors McIntosh and Chisholm, to which I have earlier referred. I will refer to it simply as the “Response.”
[25] [2001] Fam 260. The background to and summary of the report begins at p.268. Thorpe LJ agreed with the judgment of Butler-Sloss P. The focus of the report is on the psychiatric principles of contact between the child and the non-resident parent.
The features of a high conflict parenting relationship are described by Dr Altobelli in his Response. Those features include: intractable disputes (e.g. multiple and repeat users of the legal system; unwilling to listen to or respond to advice, adopting fixed views or positions in negotiations); ongoing disagreement over day to day parenting practices; expressed hostility, verbal abuse, physical threats; intermittent violence; poorly concealed acrimony; on-going denigration of one parent by another; insidious embroilment in supporting the separate views of each parent. Unfortunately, a number of these features are present in the current proceedings.
Of no less concern are the risks set out by the English Court of Appeal in re L. Although the context of the observations noted by the Court of Appeal from the Report before that Court is domestic violence, the concerns expressed, in my view, have wider application, such as the following.
After highlighting a range of important reasons for a child spending time with his or her non-resident parent, Dame Butler-Sloss noted some of the more general risks, a number of which risk materialising in the current proceedings. They include: failing to meet and actually undermining the child’s developmental needs or even causing emotional abuse; escalating the climate of conflict around the child which would undermine the child’s general stability and sense of emotional well-being. This could result in a “tug of loyalty” and the child assuming a sense of responsibility for the conflict. Added to these concerns are the risks of emotional blackmail, stress and more general fears that arise out of the ongoing conflict between the parents.[26] From what is before the Court, everything indicates that [S] is not immediately at risk of any of these things. I highlight them to bring to the parties’ attention the genuine risks that might lie ahead if the on-going dispute continues unabated.
[26] These and other matters are noted in [2001] Fam 260 at pp.269-270.
In my view, it is in [S]’s best interests to have her relationship nurtured as far as circumstances will currently safely allow. In that respect, she is best “protected” (if she ever needs to be) by the willing, observational capacity of the Contact Centre at the beginning and at the end of her time with her Father. In this respect, as I have previously said, I accept the more comprehensive submissions on behalf of the Independent Children’s Lawyer who, unlike Ms Lang, has the benefit of the complete history of the proceedings. As indicated, these are the reasons for the orders that were made in Canberra on 31st March, and in Wagga Wagga on 11th May 2009.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: R. Davidson
Date: 22 June 2009
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