Lyle & Keith
[2008] FMCAfam 178
•8 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LYLE & KEITH | [2008] FMCAfam 178 |
| FAMILY LAW – Parenting – best interests of the child – parental anxiety – relevance of past criminal history – gradual increase in unsupervised time. |
| Family Law Act 1975, Part VII, ss.60B (1)(a), (1)(b), 60B (2)(a) & (b), 60CA, 60CC (2)(a), (2)(b), (3), (3)(a) – (d), (3)(g), (i), (l), (j) & (k), (4)(a), 61DA 61DA (4), 65DAA, 106A |
| Cornwell v R [2007] HCA 10; (2007) 234 ALR 51 Goode v Goode (2007) 36 Fam LR 422 Keach v Keach [2007] FamCA 1496; (2007) FLC ¶93-353 Rice and Asplund (1979) FLC ¶90-725 SPS v PLS [2008] FamCAFC 16 |
| Applicant: | MR LYLE |
| Respondent: | KEITH |
| File Number: | CAC 4 of 2007 |
| Judgment of: | Neville FM |
| Hearing date (at Wagga Wagga) | 11 February 2008 |
| Date of Last Submission: | 26 February 2008 |
| Delivered at: | Canberra |
| Delivered on: | 8 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lyle in person |
| Solicitors for the Respondent: | Mr Pellandine from Jensens Solicitors (Lennox Head) |
| Independent Children’s Lawyer: | Ms Godtschalk (Counsel) Instructed by Robb & Associates (Albury) |
ORDERS
Until further order, 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 as follows:–
(a)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.
(b)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.
(c)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.
(d)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.
The Father will advise the Contact Centre 48 hours ahead of time of his planned activities with S away from the Centre.
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.
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.
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.
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.
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 in 1999.
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.
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.
The Independent Children’s Lawyer will advise S of these Orders.
It is requested that an updated family report be prepared in December 2008.
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.
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
Introduction
In the second Report (dated 23rd January 2008) of the Family Consultant, Ms Lang records the child the subject of these proceedings – S (who is 8 years old) – saying: “she [Mum] likes to worry.”[1] In a great many respects, this child-like but astute observation is central to the determination of what should be the appropriate parenting orders for S in spending time with her Father, Mr Lyle, which is the central issue for determination in these proceedings.
[1] In her evidence during the trial, the Family Consultant, Ms Lang, confirmed that S said to her: “…her mother likes to worry a lot and that her mother is concerned about her … spending unsupervised time with her dad.” Transcript (11th February 2008) p.35.
In almost all respects, the range of issues that are contested between the parties is quite small. Both parents have a good relationship with their daughter, and she with them. There are no orders sought to change S’s living situation with her Mother, Ms Keith. The only issues relate to where, under what circumstances, and for how long, S spends time with her Father.
The Proposals[2]
[2] The following summaries are taken primarily from the “Outline of Case Documents” and Written Submissions filed respectively on behalf of Ms Keith and the Independent Children’s Lawyer, Ms Godtschalk, of Counsel. Mr Lyle filed neither of these documents. I have had regard to his Application in a Case filed on 23rd November 2006, and his Affidavit, sworn 6th August 2007, for the purposes of summarising the orders that he seeks in these proceedings.
Mr Lyle’s proposals are relatively modest. Summarily, he seeks orders whereby (a) he and Ms Keith have joint parental responsibility for S, (b) his time with S be increased both during its supervised stage and ultimately until it is unsupervised; and (c) S [ultimately] spend every alternate week-end with her Father from 10am Saturday until 5pm Sunday. Mr Lyle also seeks telephone time with his daughter and that she spends part of each school holidays with him, as well as various “special occasion” time, such as birthdays and the like. He summarised his position at the trial this way: “… I would like to [have] unsupervised visits with my daughter and to extend them over a period of time.”[3]
[3] Transcript (11th February 2008) p.2.
Again without being completely exhaustive, the principal orders sought by Ms Keith are as follows: that S continues to live with her and that she have sole parental responsibility for the care, welfare and development of S. Ms Keith also seeks orders whereby Mr Lyle spends quite limited time with S, and that it be supervised. She seeks other orders relating to drug and alcohol testing, that Mr Lyle sign documents that will enable her to obtain a passport for S, and that she and S be permitted to travel overseas, with due notice and details having been provided to Mr Lyle beforehand. Mr Lyle objects to S travelling overseas at such a young age. He does not see the need for such travel in any event. Ms Keith’s orders also provide for telephone time between S and Mr Lyle and certain restraints regarding Mr Lyle’s consumption of alcohol prior to him spending time with S, and that he not approach or speak with her while she is attending school. Arrangements for Mr Lyle spending time with his daughter are to be confirmed with Ms Keith on or before the Thursday prior to the Saturday time or at least 48 hours prior to any other time.
The orders proposed by the Independent Children’s Lawyer (“the ICL”) were varied slightly between those set out in the Outline of Case Document filed prior to the hearing in Wagga Wagga, and the Written Submissions of Counsel dated 19th February and filed on 26th February 2008, that is post the one day hearing on 11th February.
The proposals of the ICL are that the parties have equal shared parental responsibility, and that the applications of the parties be adjourned for further hearing in Wagga Wagga in approximately 12 month’s time. This is to enable the Court to assess the operation of any increase in time spent between Mr Lyle and S and to assess the results of drug and alcohol testing for the 6 months prior to the next hearing, as proposed also by the ICL.
The ICL also seeks orders, in the light of the evidence given by both parties at the hearing, as follows: that until further order, Mr Lyle is to spend time with S -
a)For a period of two months (i) for a block period of four hours per fortnight, (ii) two hours of the time spent to be supervised, and two hours unsupervised. The supervised time shall be at the beginning and end of the time together.
b)For a further period of two months (i) for a block of five hours per fortnight, (ii) two hours of the time spent to be supervised, three hours unsupervised. The supervised time shall be at the beginning and at the end of the time together.
c)For a further period of two months (i) for a block of six hours per fortnight (ii) two hours of the time spent to be supervised, four hours unsupervised. The supervised time shall be at the beginning and at the end of the time together.
d)For a further period of six months (i) for a block period of six hours, unsupervised, with changeovers to occur at the Contact Centre, (ii) one hour of the time spent shall be supervised. The supervised time shall be at the beginning and at the end of the time together.
Additionally, the ICL seeks orders to restrain Ms Keith from following or interfering with Mr Lyle’s time with S; and that Ms Keith use her best endeavours to prevent other family members from doing the same. As well, the ICL seeks orders requiring the parties to attend mediation as recommended by Relationships Australia, that Mr Lyle advise the Contact Centre 48 hours ahead of time of his planned activities with S away from the Centre, and finally that S’s parents continue to work and liaise with the Contact Centre staff and do all such acts as recommended by them to assist Ms Keith to manage her anxiety about S’s unsupervised time with Mr Lyle.
The Evidence
I wish to deal firstly with the evidence of Mr Lyle, then with that of
Ms Keith, and finally I consider the evidence of Ms Lang, the Court-appointed Family Consultant.[4]
[4] In addition to her oral evidence during the trial, Ms Lang also provided two written Reports, dated 20th July 2007 and 23rd January 2008.
Mr Lyle’s Evidence: In cross-examination, Mr Lyle confirmed that he had not revealed that he had a number of convictions (thirteen in all) between 1983 and 2005.[5] They ranged from a mid-range PCA conviction (in 1994) to malicious damage to plants in 2005. The plants were actually two trees that Mr Lyle claimed were his that he was simply “recovering” - by chopping them down from his neighbour’s property. Unfortunately, the police records offer little other information in relation to this conviction, except that he was fined $800.00 and ordered to pay court costs of $63.00.
[5] Mr Lyle’s criminal record from the NSW Police Force was tendered in evidence and became Exhibit “A.”
Of the thirteen convictions, six related to use or possession of Indian hemp, or utensils associated with it. In a number of instances, including two charges relating to “receiving”, Mr Lyle was sentenced “to [the] rising of the Court.”
There was a charge of forgery and uttering in 1983, and one of stealing one carton of beer, also in 1983. In 1987 there were convictions of break and enter with intent (for which Mr Lyle was placed on self- recognisance and a $200.00 good behaviour bond for two years), and another charge of indecent assault of a female, which resulted in a similar sentence. In relation to both matters, Mr Lyle was also required to proceed to [X] and to remain there until his discharge by the Administrator of that facility.
Curiously, perhaps, Mr Lyle was not cross-examined at any length on these offences. There was little other detail about these convictions in the police records. Nor was he cross-examined in detail about the more recent charge and conviction for common assault in 2003. The police records detail that he struck a lady, with whom he was playing cards, on the finger. For this offence, he was fined $400.00 and placed on a bond, and required to report to the probation service “forthwith.” He was also required to undergo assessment for drug and alcohol use.[6]
[6] Two AVOs were taken out against Mr Lyle, one by Ms Keith in 2004, and another in 2005. There have been no such orders since then.
When I asked him why he had not disclosed these matters in his material filed with the Court, he said that he did not think it was relevant to the relationship with his daughter.[7]
[7] Transcript (11th February 2008) p.17.
Mr Lyle confirmed that he continued to smoke marijuana once per week, when he went fishing. He smoked with others. He later suggested that he smoked only when he was stressed. He claimed that he was now only stressed by the actions of Ms Keith in her efforts to limit his time with S. He said he felt persecuted by Ms Keith. He also said that he was determined not to continue smoking.[8] His evidence with regard to smoking marijuana was, it seems to me, somewhat conflicted.
[8] See Transcript (11th February 2008) pp.19, 20, 25 & 26. Given his statements about on-going drug use, that he was self-represented, and after discussion with Mr Pellandine (for Ms Keith) and Counsel for the ICL, Ms Godtschalk, I granted Mr Lyle a certificate under s.128 of the Evidence Act 1995. See Transcript (11th February 2008) p.20. For a detailed discussion of the operation of s.128, see the High Court judgment in Cornwell v R [2007] HCA 10; (2007) 234 ALR 51.
Not surprisingly, Mr Pellandine, for Ms Keith, submitted that Mr Lyle’s conduct evidenced by his convictions – both over time and somewhat recently, with what Mr Pellandine called “minor criminal events”[9] – and by his confirmation of continued recreational drug use, indicated that he had little understanding, or appreciation, of his responsibilities as a parent. As he put it in his opening at the trial: “… the father’s behaviour, his attitude towards his sense of responsibility, participation in the community has not changed significantly since the last orders were made.”[10] Ms Godtschalk rejected such a submission, declaring in her opening that “… there has been a significant change in Mr Lyle’s attitude to the community as a whole and in particular to the responsibilities of parenthood.”[11]
[9] Transcript (11th February 2008) p.6.
[10] Transcript (11th February 2008) p.6.
[11] Transcript (11th February 2008) p.8.
For reasons noted below, I do not accept Mr Pellandine’s submission, at least not in the unqualified way it was put. Indeed, the submission seemed predicated upon Ms Keith’s perception of Mr Lyle rather than upon what is in S’s best interests from a parenting perspective. That said, I accept, to a degree, that Ms Keith’s perception of Mr Lyle and therefore Mr Pellandine’s submission is predicated on what Ms Keith sees as the need to protect S from her Father. But this need to protect is itself based on information and events that are now somewhat, if not considerably, dated. As observed later in these reasons, Ms Keith does not accept that Mr Lyle, in any material respect, has changed at all.
Mr Lyle has recently completed a parenting course, which he undertook on his own volition. He is concerned about the cost of on-going drug testing. He also considers that Ms Keith sees him as the same person she knew eight years ago and who has not changed at all, whereas he considers that he has changed, evidenced by, among other things, his paid employment, and other matters set out in the notes from the [E] Centre.[12] His improved behaviour is also testified to in the Observation Notes from the contact centre. I accept this evidence of Mr Lyle, and the submission of Counsel for the Independent Children’s Lawyer, that there has been a change for the better in his behaviour.
[12] Transcript (11th February 2008) p.46.
Ms Keith’s Evidence
: At the outset of her evidence, to her credit,
Ms Keith properly acknowledged that Mr Lyle and S have a very close bond, indeed that “she adores him”, and also that as she gets older, S will outgrow spending time with her Father at the contact centre.[13] As already indicated, she sincerely believes that S would be in danger if she spent unsupervised time with her Father, and that nothing has changed with Mr Lyle since 2001.[14] She does not specify or identify the nature of the danger to which S would be exposed.
[13] Transcript (11th February 2008) pp.51 & 52-53.
[14] Transcript (11th February 2008) pp.53 & 54.
Also to her credit, Ms Keith agreed with Ms Godtschalk’s proposition that she (Ms Keith) was angry with interim orders that were made by me last year whereby some unsupervised time was ordered, albeit that it was sandwiched between supervised time at the contact centre. Following those orders, Ms Keith confirmed, as do the detailed notes from the contact centre, that on the first occasion of that unsupervised time, out of almost unbridled anxiety she attended the centre and effectively did not allow it to take place. The contact centre was very concerned about the actions of Ms Keith: not only did the centre make detailed notes but also made a report to the Department of Community Services. That report concerned Ms Keith’s emotional state and the impact it might have on her daughter. The notes refer to Ms Keith as “emotionally disturbed.”[15]
[15] The notes of the Children’s Contact Centre were in evidence. The notes regarding the incident are dated 22nd September 2007. It was not put to Ms Keith in the witness box, but it may be observed that her actions of interrupting Mr Lyle’s time with his daughter, pursuant to Court order, could be regarded at least as a technical contempt of the orders, or at least a formal contravention of them. Extracts from the notes are recorded in the Transcript
Mr Lyle is recorded as behaving in a very appropriate way at the distressing situation in which all parties found themselves as a result of Ms Keith’s actions. Mr Lyle did not, in the event, press for the unsupervised time on that occasion. As well, the notes state that S “was upset about not being able to have a picnic with her [Father].” The notes also confirm that S has expressed a desire to spend more time with her Father and has done so “over many months.” It is perhaps unsurprising in the light of the distress on that particular occasion that S, in later months, has expressed the wish to remain at the centre for time with her Father. Again, as the notes record, Ms Keith’s actions risked placing S in the position of having to choose between her Mother and her Father.
In cross-examination, Ms Keith confirmed that she had (i) provided at least two agencies (the [E] Centre and the Children’s Contact Centre) with copies of Mr Lyle’s criminal record, and (ii) improperly obtained copies of the Department of Community Services (“DOCS”) records in relation to Mr Lyle and his now two grown children. It was through those grown children, one of whom Ms Keith (a music teacher) had formerly taught, that the DOCS records were obtained. Those records were also passed on to the agencies already mentioned. She also provided a copy of the Family Report(s) of Ms Lang to persons not authorised to receive them. Ms Keith acknowledged, somewhat reluctantly, that some of her actions were wrong, and that other actions she now knows were wrong.
Ms Keith seemed very reluctant to comment on, let alone agree with, Ms Godtschalk’s questions that related to Ms Keith’s knowledge, as a teacher, about the importance of keeping private and secure sensitive information of the kind set out in the DOCS documents.[16] All of her actions, in her view, were designed to protect her daughter. In her view, Ms Keith would seemingly do anything to ensure that Mr Lyle’s past criminal history, and any other information, was made available to as wide an audience as possible. As she put it in evidence, she knows Mr Lyle and that, in her view, he has not changed at all. Therefore, in her view, his history must be made available to those who do not know him as Ms Keith does.[17]
[16] See Transcript (11th February 2008) pp.58 and following.
[17] Transcript (11th February 2008) pp.54-65.
Always, Ms Keith sought (and seeks) to justify her actions as being protective of S. While her motivation is perfectly understandable, her actions are not legally (or morally) justifiable. The matter may be put another way: for the most part, Ms Keith’s motive was and remains to protect S; her intention however was to obtain, by whatever means, documents and information, and to inform, anyone and everyone regarding Mr Lyle’s past. As already indicated, her motive was and is understandable, even laudable. Her intention(s) and consequent actions, however, from a legal perspective, have been less so.
There is some irony in noting the lengths to which Ms Keith has gone, and is prepared to go, including actions that are difficult to consider
Ms Keith would not have known were improper (if not illegal), when, at the same time, she points to Mr Lyle’s “minor criminal behaviour” as a reason (among others) for denying him unsupervised time with their daughter.
In the light of Ms Keith’s evidence, in essence the issues for determination relate to the framing of appropriate parenting orders that take account of Mr Lyle’s situation, as well as Ms Keith’s ever-present and deep anxiety about S spending time with her Father. The issue was put succinctly by Ms Godtschalk to Ms Lang this way:
Ms Lang, would you agree that providing S is protected from the risk of harm and comfortable with it, then time spent away from the confines of a contact centre is likely to be more meaningful than the present regime continuing ad infinitum?[18]
[18] Transcript (11th February 2008) p.32.
Ms Lang’s Evidence: Ms Lang agreed with Ms Godtschalk’s proposition, as set out in the previous paragraph, and in particular that supervised time at the contact centre indefinitely was not a realistic proposition. Her evidence may otherwise be summarised as follows. She confirmed the importance of ensuring that S and her parents were properly prepared for any move to unsupervised time between S and her Father, and that all parties (and their daughter) plan and are informed about activities for unsupervised time. Secondly, she agreed that it was promising that the contact centre notes show that Mr Lyle has not appeared ever to have been affected by alcohol at any time when he has attended for supervised time with S since 2004.[19] Thirdly, as already noted, the contact centre’s notes record S having asked, over a period of time, that she spend more time with her Father. Those same notes evidence that Mr Lyle has been able to control his anger and be very patient with his daughter in difficult situations.[20]
[19] For the sake of completeness, Ms Godtschalk did observe that the notes make one reference to Mr Lyle smelling of – as opposed to being affected by - alcohol when he attended the contact centre. Transcript (11th February 2008) p.33.
[20] Transcript (11th February 2008) pp.31-37.
Ms Lang agreed that Mr Lyle not consuming alcohol or using drugs around, or such as would impact on his care of, S was another “positive.” She also considered that using the contact centre as a vehicle for monitoring Mr Lyle’s time with S was something of a protective measure. She also ventured the view that for some people who habitually use substances was a form of self-medication.[21]
[21] Transcript (11th February 2008) p.37.
The final thing to note from Ms Lang’s evidence, which I should say that I essentially accept in its entirety, is that she was asked certain questions by Mr Pellandine about the following comment in her Report of July 2007 (p.3, par.3): “It would appear that S has adopted a caring role in relation to her father.” She commented further on this as follows:
Q. Is that normal at that age? A. For some children where they see a parent as vulnerable they [quite] often almost reverse roles if you like and do become quite caring with that parent. It’s not uncommon.
Q. So you think that’s happening in this matter? A. S, well she’s certainly a very caring child to begin with and a very insightful child as well. So, yes, I certainly think that S sees her father as needing of care. In my view she’s quite caring of her mother as well.[22]
[22] Transcript (11th February 2008) p.38.
Summary of Findings
I accept the submission of Counsel for the Independent Children’s Lawyer that circumstances have changed significantly (and sufficiently) regarding Mr Lyle. They have done so to such a degree that the submission of Mr Pellandine that the principle in Rice and Asplund[23] prevents any re-consideration of or change to the existing orders must fail.
[23] Rice and Asplund (1979) FLC ¶90-725. For a very recent and detailed consideration of this important decision, see the judgment of Warnick J in SPS v PLS [2008] FamCAFC 16.
I accept that Mr Lyle has made significant improvement in his social and familial responsibilities and, as a matter of fact, subject to the proper application of legal principles concerning the best interests of S being paramount, he should be accorded more time with his daughter.
I accept that Ms Keith’s motives have been and continue to be to protect S. I do not accept her submission that Mr Lyle poses a threat to his daughter, especially if, as will be the case, sufficient safeguards are in place to ensure her protection.
Legal Principles
A. Section 60B & Section 60CC Considerations
While I will get to Part VII of the Family Law Act1975 (“the Act”) soon enough, and equally to the Full Court’s prescriptions in Goode v Goode, and more recently in Keach v Keach,[24] I begin this part of these reasons with an important observation by Carmody J in W and G (No 2).[25] His Honour said:
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.[26]
[24] The Full Court’s decisions are at (2007) 36 Fam LR 422 and [2007] FamCA 1496, (2007) FLC ¶93-353 respectively.
[25] (2005) FLC ¶93-248.
[26] Ibid., at [45] p.80,067. Internal citation omitted.
His Honour’s principles of parental involvement and protection of the child are given even greater import in the light of the 2006 amendments to the Act set out in Part VII. To paraphrase slightly, they make explicit, among other things:
i)the centrality of both parents having a meaningful involvement in a child’s life (to the maximum extent consistent with their best interests) and the child having a meaningful relationship with both of the child’s parents (ss.60B(1)(a) & 60CC(2)(a));
ii)S having the right to know and be cared for by both parents, and to spend time on a regular basis with, and communicate on a regular basis with, both parents (ss.60B(2)(a) & (b));
iii)the need to protect S from physical or psychological harm arising from being subject to or exposed to abuse, neglect or family violence (ss.60B(1)(b) & 60CC(2)(b)).
The objects and principles of s.60B, and the primary considerations enunciated in s.60CC(2), in determining a child’s best interests as the paramount consideration pursuant to s.60CA, are complemented by the additional considerations in s.60CC(3).
Section 60CC(3)(a) refers to the Court considering “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.” I have already documented that S is recorded in the children’s contact centre notes as having expressed the view, over a period of time, of her desire to spend more time with her Father. More recently, post the unfortunate intervention by her Mother, S has expressed a preference to remain at the centre. As well, I have also recorded Ms Lang’s observation that S is an extremely bright and sensitive young girl. All of these factors must be taken in to account in the order to be made to allow her to spend more time with her Father, and to ensure that she is protected from any risk in doing so, although I have found that any risk from her Father is slight if not remote. Rather, it seems to me that the challenge for Mr Lyle is to establish, over time, that he has the capacity to provide ordered, structured engagement in the time he spends with his daughter.
For the purposes of s.60CC(3)(b), I have already noted the nature of each parents’ relationship with S, and she with them. She has a very good relationship with both her parents. No other persons featured in the relationship with S for the purposes of these proceedings.
As far as s.60CC(3)(c) is concerned, the evidence is clear: Ms Keith is completely distrustful of Mr Lyle, while Mr Lyle is agitated (to a significant degree) by Ms Keith. While both acknowledge the relevance and importance of the other in S’s life, they currently have minimal if not a negative view of the capacity of the other parent to such a degree as to stymie the other’s relationship with their daughter. This is especially so in the case of Ms Keith who is openly hostile to Mr Lyle spending time with S. There is no suggestion that Ms Keith change, in any respect, from being S’s primary carer. Ms Keith’s encouragement of S’s relationship with her Father is tempered by her high anxiety level about Mr Lyle, who has not undergone regular drug testing.
As far as sub-paragraph (d) of the section is concerned, both parents, and S, require assistance from the contact centre (and possibly other counselling facilities over time) to progress the relationship between Father and daughter, and to assist Ms Keith in dealing with her acute levels of anxiety. The contact centre continues to provide an independent check on whether Mr Lyle is or is not affected by drugs or alcohol.
There are few difficulties on the practical level, under s.60CC(3)(e), save for Mr Lyle being reliant on public transport to take S to places such as the local swimming pool. He acknowledged that getting a cab would be an easy option.
There is no question about Ms Keith’s capacity, under s.60CC(3)(f), to provide for S’s needs, including emotional and intellectual. That said, some restraint obviously needs to be exercised, on her part, in relation to not passing on to S her acute anxiety about Mr Lyle. She seems, at this stage, unable or unwilling, to accept the impact on S of her ongoing and intense apprehension about Mr Lyle. Given his limited and largely supervised time with S, some question marks necessarily remain about Mr Lyle’s capacity to provide for S, not to mention the importance of him being able to show the Court (and Ms Keith) that his own life is characterised by order and due responsibility, especially in relation to drug and alcohol use as well as ongoing employment. In the light of the orders made in these proceedings, which will allow for an increase of time between Father and daughter and for the matter to come back before the Court in 12 month’s time, it will be for Mr Lyle to demonstrate his capacities in this regard, especially as S grows older and her needs change. Also, Mr Lyle will need to demonstrate his capacity to abide by orders of the Court, including those in relation to drug and alcohol testing.
In my view, sufficient has already been said about all the parties and S so as to satisfy a consideration of the matters set out in s.60CC(3)(g).[27]
[27] S.60CC(3)(h) has no application to the current proceedings.
In relation to sub-paragraph (i), I accept the submission of Counsel for the ICL, which states: “… the mother has displayed all the appropriate attitudes to the parenting of S except in relation to the proposed unsupervised contact [sic] between S and Mr Lyle. Her publication of material and assertions against the father (largely unsupported by actual evidence) is not in the best interests of S.”[28] I repeat what I said in paragraph [41] regarding Mr Lyle’s capacity concerning his responsibilities of parenthood. To the degree that he has been able to exhibit them in the constrained circumstances so far, his attitude toward S has been appropriate. This is confirmed by the contact centre notes. He needs to demonstrate more extensive parenting capabilities over the next year as his time with S increases, as her needs increase, as well as his capacity to communicate with and to keep Ms Keith informed of planned activities. Mutual orders in this regard will be made.
[28] This submission is taken from pp.4-5 of the Written Submissions on behalf of the Independent Children’s Lawyer, filed on 26th February 2008.
I do not consider sub-paragraphs (j) or (k) concerning family violence to be immediately engaged. I have traversed at some length Mr Lyle’s criminal history and his rehabilitation and good behaviour in recent times as recorded by the contact centre notes and the reports from the [E] Centre who employs him. Apart from anything else, one can be confident that Ms Keith will inform the Court should Mr Lyle transgress in any way in this or any other manner.
The orders that seem appropriate at this stage, having regard to s.60CC(3)(l), Mr Lyle’s situation and history,[29] and especially given S’s age and level of maturity, can only be of a kind that will cover the next year so that all parties, and the Court, have the opportunity to re-assess the level, nature and circumstances of time spent between Mr Lyle and S. For these and the other reasons already canvassed at length, increase in time between Father and daughter should be gradual and regularly, but not intrusively, monitored, for the sake of all. Moreover, as Ms Keith herself acknowledges, as S matures, she will be able to act in a protective manner if ever the need arises.[30]
[29] The evidence also is that Mr Lyle suffers from reactive depression.
[30] Also for the sake of completeness, I should note that because of the length of time since allegations were made concerning Mr Lyle’s treatment of his two daughters from an earlier relationship, those daughters now being in their early twenties, I do not consider that very much weight can or should be given to the very limited information available or provided to the Court in these proceedings. It is referred to in the Transcript (11th February 2008) in Ms Godtschalk’s cross-examination of Ms Keith beginning at p.54.
Also for reasons already discussed at length, it should be plain as to the respective strengths and weaknesses of each parent, and therefore, for the purposes of s.60CC(4), how each of them has fulfilled and failed to do so their responsibilities as a parent. In my view, it would be repetitive in the extreme to record them again.
However, one aspect needs to be noted. It is relevant to s.60CC(4)(a) in particular, as well as being relevant to the consideration and operation of s.61DA regarding the presumption of equal shared parental responsibility in circumstances such as here where a parenting order is to be made.
Section 60CC(4)(a) relevantly refers to the requirement of the Court to consider how each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child. As is plain in this case, Ms Keith takes all the care and responsibility for S’s care and welfare. She would not allow Mr Lyle from taking any responsibility for major long-term issues, as well as day-to-day decisions regarding S. If Mr Lyle is to assume or take any responsibility for major long-term issues with or for S, he needs to demonstrate his capacity to do so. Similarly, as already mentioned,
Ms Keith must demonstrate some capacity to communicate with
Mr Lyle over major long-term issues, perhaps not immediately, but over the next year.
In my view, I do not think that it is in S’s best interest for the presumption in s.61DA to operate immediately. In this respect, I do not accept the Counsel for the ICL’s submission that the presumption should operate, or otherwise that an order for equal shared parental responsibility should be made. Such an order may well be appropriate in twelve month’s time. It is not, in my view, appropriate at this time. Mr Lyle, as I have said, needs to demonstrate his responsibility for his life and his time with S for the next twelve months for such an order to be made. The evidence about his drug-taking and alcohol consumption is sufficient, in my view, to rebut the presumption, as required under s.61DA(4). Such a determination renders a consideration of s.65DAA superfluous because that section states, in terms, that it applies in circumstances where a parenting order is made, which provides for the child’s parents to have equal shared parental responsibility for the child. That is not the case here.
Summary & Conclusion
From what has been said, and in the light of the submissions and orders sought on behalf of Ms Keith and by Counsel for the ICL, I consider it to be in S’s best interests that orders be made in accordance with those sought by the Independent Children’s Lawyer with respect to the graduated increase in time between Mr Lyle and S. Those orders are to be reviewed in twelve month’s time.
I also consider it to be in S’s best interests that orders are made to ensure that Mr Lyle sign all relevant and necessary forms to enable a passport to issue in her 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. In the absence of Mr Lyle signing such papers, s.106A of the Act shall apply, so that the Registrar of the Family Court shall be authorised to sign any relevant documents in this regard.
Mr Lyle is to undergo regular drug and alcohol testing over the next twelve months. Other orders to be taken from pars. 4, 7 & 8 above, as well as that S live with her Mother, Ms Keith, and, until further order of the Court, Ms Keith is to have sole parental responsibility for S.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 8 May 2008
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