Maffle & Pensum
[2009] FamCA 127
•13 February 2009
FAMILY COURT OF AUSTRALIA
| MAFFLE & PENSUM | [2009] FamCA 127 |
| FAMILY LAW - CHILDREN - parenting - child of 14 - balance between importance of meaningful relationship and importance of protecting from abuse - child’s wishes - father’s behaviour - no order for regime of structured time - order for sole parental responsibility FAMILY LAW - CONTRAVENTION - children’s order - reasonable excuse made out - no order for compensatory time - no order applicant contribute to respondent’s costs |
| Family Law Act 1975 (Cth) |
| FATHER: | Mr Maffle |
| MOTHER: | Ms Pensum |
| INDEPENDENT CHILDREN'S LAWYER: |
| FILE NUMBER: | MLF | 9099 | of | 1998 |
| DATE DELIVERED: | 13 February 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 9, 10, 11 February, 2009 |
REPRESENTATION
| THE FATHER: | In person |
| COUNSEL FOR THE WIFE: | Ms M.M. Daly |
| SOLICITOR FOR THE WIFE: | Rigoli & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr P.A. Marchetti |
| INDEPENDENT CHILDREN'S LAWYER: | McCluskys Lawyers |
Orders
That all previous parenting orders and injunctions in respect of the child … born … March, 1995 (“the child”) be discharged.
That the mother have sole parental responsibility for the child.
That the child live with the mother.
That the child spend time and communicate with the father as agreed between the child and the father.
That the father, at his expense (if any) be at liberty to obtain school reports and photo order forms for the child from G Secondary College.
That the independent children’s lawyer serve a sealed copy of this order on the principal of G Secondary College and that order serve as authority to the school to provide copies of school reports and photo order forms to the father pursuant to the preceding order.
That the contravention application filed by the father on 17 June, 2008 be dismissed, the court having found that the mother had a reasonable excuse for contravening the orders on each of the occasions alleged and that it would not be in the best interests of the child to make an order for compensatory time with the father.
That there be no order for costs in respect of the application for contravention of orders.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, upon determination of the appeal.
That a copy of the reasons for judgment herein may be made available to :
(a)Ms. E;
(b)Mr. S;
(c)Dr. K;
(d)the principal of any school attended by the child, including any TAFE college attended by him and, in the absolute discretion of the principal, any teacher, counsellor, mentor or adviser working with the child at or through the school; and
(e)any police officer or Department of Human Services worker investigating any allegation which involves or concerns the child.
That all extant applications be otherwise dismissed and removed from the List of Matters awaiting finalisation.
That pursuant to s.62B and s.65DA(2), 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 adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That the reasons for judgment this day be transcribed and copies made available to the parties.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym Maffle & Pensum is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 9099 of 1998
| MR MAFFLE |
Father
And
| MS PENSUM |
Mother
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Before the court are two applications. Both were filed on 17 June, 2008 by the father, Mr Maffle. In one, an amended application for final orders, he sought to vary parenting orders made on 15 May, 2007, which relate to the parties’ son, born in March, 1995. In the other, he sought that the mother, Ms Pensum, be dealt with for thirteen alleged contraventions of those orders.
The parties met in the early 1990s and separated in 1997. In 1998 the father filed an application seeking parenting orders and litigation between the parties has consumed much of the decade since then. The father was keen to revisit events over the eleven year period since separation, events which have been the subject of a number of judicial determinations.
The orders of 15 May, 2007 varied orders made on 3 December, 2002 and suspended a number of provisions of order made on 15 November, 2006, until further order. The orders noted that, save for those variations and suspension, orders made on 15 November, 2006 and 3 December, 2002 remained in full force and effect.
The orders of 3 December, 2002 were made at the conclusion of a trial before Dessau J. Pursuant to those orders the parties retained joint responsibility for the child’s long term care, welfare and development. The child was to live with the mother and she was to have sole responsibility for his day to day care, welfare and development. The orders provided for the father to have contact with the child each alternate weekend from 6:00 pm. Friday to 6:00 pm. Sunday, for half of all school holidays as agreed between the parties and, failing agreement, for the second half of each holiday period and on special times. There was also to be contact by telephone and additional contact as agreed between the parties. The mother was to keep the father advised of the child’s current residential address and telephone number.
Proceedings since orders of 3 December, 2002
To put this trial in context, I will briefly summarise applications made since Dessau J made those final orders on 3 December 2002. The father filed a contravention application on 23 July 2004 in the Federal Magistrates Court. Those proceedings concluded with an order made on 18 May, 2005, in the absence of the mother, in which she was found guilty of a number of contraventions and ordered to attend a parenting program, if assessed as suitable. I will say something further about those applications in due course.
On 1 September 2006 the father filed a fresh application seeking final parenting orders; he sought that the child live with him. He filed an amending application for final orders on 6 October, 2006 and another amending application for final orders on 21 December, 2006. His application remained that the child live with him and spend time with the mother.
On 25 May 2007 an interim hearing took place before Senior Registrar FitzGibbon. Senior Registrar FitzGibbon noted in his judgment that it is unusual for a parent to reject an offer of time with a child because in that parent's mind too much time was offered. He noted that the father wanted changeovers at Y, not W. He noted the value of school changeovers in situations of parental hostility, and the father's opposition to them, and the father's advice that he would not take time with the child if he felt he could not practically comply, as well as the father’s evidence that he could not guarantee to get the child to his football games on Sundays at 11:00 am. The senior registrar made observations about problems which occurred when the father rang the mother and determined that it would be preferable for the father to ring the child on his (the child’s) mobile, clearly stating that that would avoid potential for confusion between the parties. He also noted the father's evidence before him that he anticipated being in full‑time employment soon.
On 17 June 2008 the amended application was filed, to which I have adverted. The contravention application was filed on that day, too. In that amended application the father sought that the child live with him and that he spend time with the mother broadly as the earlier orders provided for him to spend time with the father, being alternate weekends, half school holidays and special days. He asked that changeovers be outside the Y police station.
The case came before me on 14 August, 2008 as the first day of what is called a less adversarial trial. I ordered the parties to attend on Dr. K and on Ms. E, the former for a psychiatric assessment, the latter for an updating family report, and adjourned the case to 12 January, 2009.
On 12 January the father orally amended his application. He advised that he no longer sought residence. At that point he was prepared to agree to orders in the terms recommended by Ms. E, to which I will advert later. That decision meant that different and less far ranging evidence would be relevant in the trial. The issues before the court on 12 January, 2009 were, and remained in the trial, the question of who should have parental responsibility for the child and the time he was to spend with his father.
When this round of proceedings started in September 2006 the child was about 11 and a half. He is now a few weeks short of 14 and that, too, impacted on the evidence which was relevant in the trial. I was satisfied, as provided in Division 12A of the Family Law Act 1975, that evidence needed to be focused on the matters in issue and that the most relevant evidence related to events since the hearing before Senior Registrar FitzGibbon, some 21 months ago.
EVIDENCE
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The father relied on the contravention application filed 17 June, 2008 and an affidavit sworn by him in support of that application on the same day. He also relied on his amended application for parenting orders filed 17 June, 2008 and an affidavit sworn on 22 January, 2009.
The mother relied on affidavits sworn by her on 7 July, 2008 and 2 February, 2009.
The independent children’s lawyer adduced evidence from Ms. E, a psychologist, who prepared a report dated 22 February, 2007 which was before the court when orders were made on 15 May, 2007 and a second report dated 24 December, 2008. He also adduced evidence from Dr. K, being an assessment of the mother dated 15 December, 2008, and the issues assessment of Mr. S, dated 31 July, 2008.
As a result of evidence given during the trial, I requested Mr. S to meet with the child on 10 February, 2009 in order to obtain an account from the child of events which occurred on the Australia Day weekend 2009 and the child’s current views. Mr. S prepared an addendum to his earlier issues assessment, dated 11 February, 2009.
The mother, father, Ms. E, Dr. K and Mr. S were all cross-examined.
I propose to deal first with the applications for parenting orders. Findings made in them will be relevant to determination of the application for contravention.
Legal principles relevant to applications to vary parenting orders
The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
PARTIES
The father is aged 37 and lives in a Ministry of Housing flat in F, which he shares with an unnamed student. He graduated with a Masters in marketing in December 2008. His evidence was of working 30 hours a fortnight in a media job in the city, for which he is paid $15 an hour. He also receives Centrelink benefits.
The father was dismissive and disdainful of the mother; he said she was “not at all credible for the past decade” and that if the child remained living with her, he would end up on government benefits and a failure. From his perspective, any criticism the child makes of him is attributable to poor parenting by the mother and he was more keen on revisiting her past history and dwelling on her problems than he was on evidence referable to his proposals and his parenting of the child. Despite abandoning his application for residence, his focus was on what he sees as her manifest deficiencies as a parent.
The father was talkative, glib and often non-responsive. He was keen to go off at tangents. His speech was pressured and impulsive. His account of his relationship with his son was more fictional than real, he simply ignoring the reality of their sporadic interaction in recent years and the child’s expressed concerns. He spoke of the child with little empathy or warmth.
Asked about his son’s concerns about his drinking, the father’s response was simply to deny it; at one stage he said he does not drink and has not drunk for fifteen years. At another time he said it would have been difficult for the child to have seen him drunk as he (the father) only sees the child when he is at his (the father’s) parents’ home.
In her first report Ms. E expressed the opinion that the father minimised his past behaviour and was unable to reflect on its impact; she wrote that the history given to her suggested he had problems with impulse control. That that is the case is borne out by evidence of events on the Australia Day weekend 2009, to which I will refer later. Having read the child’s account of those events, Ms. E said the father’s problems with impulse control were not mediated.
I have no confidence in the father’s capacity for objective recollection, no confidence that he is genuinely focussed on his relationship with the child, and no confidence in his commitment to tell the truth. I add that I have no confidence, were he to obtain the orders sought, that he would act to implement them in any consistent way.
The mother is 40 and lives in W, with the child, her younger son, N, who is 5 and a half, and her partner, Mr. D. She met Mr. D at AA in late September 2007 and their intimate friendship commenced about six months later.
The mother has a son, V, who will be 22 in April; V is an apprentice and has not seen his father for about twelve years. Another son, O, who is eight, lives with his father and it is clear from Dessau J’s judgment of 3 December, 2002 that that has been the case since O was a very young child. She spends time with O on occasions; she last saw him at Christmas 2008.
The mother’s history is spelt out in candid detail in the account she gave Dr. K. It is one of alcohol and substance abuse, abusive relationships and long term dysfunction, all of which impacted on her parenting. She described herself as a recovering alcoholic. I accept her evidence that she has not had a drink since 30 September, 2007 and, as Dr. K noted, each day for someone in her position is a daily battle to stay sober. Mr. C, a family support worker with P Family Services, who has been working with the mother for some time, told Ms. E that the mother has stayed sober since 30 September, 2007 despite dealing with the litigation and a number of crises and stressful situations. It is clear that staying sober, and avoiding any situation which could act as a trigger to renewed drinking, is a major and legitimate preoccupation of the mother.
The mother is not an educated woman, having left school at fifteen. She has obtained an aged care certificate level 3 and a number of ancillary certificates relating to first-aid and the capacity to give medication. She aspires to do an aged care level 4 certificate and other advanced studies so she can work with ill people in hospital.
The mother sees a psychologist regularly, as well as Mr. C, and attends AA meetings regularly. She was candid about memory problems (a result of years of alcohol abuse) and they must impact on her recollection of events prior to her abstaining in 2007.
It is probable that since abstaining in September 2007 and maintaining involvement with AA the mother has made significant personal gains, particularly gains and insight into her own destructive behaviour patterns. She has developed a good support network and in Mr. D has found a gentle and supportive partner. That relationship is still young. Mr. D sat with her during the trial and maintained his composure through the father’s sometimes florid attacks on the mother’s credibility and capacity.
The mother maintains her hostility to the father, with whom she seeks to have no contact or communication whatsoever. I accept her evidence of past abuse and intimidation directed by him at her at contact changeovers and that she was frightened of him. Her evidence is that she is no longer frightened of him but I am satisfied she is frightened that exposure to him, and the potential abuse and intimidation she perceives as likely to accompany that exposure, will trigger distress which will cause her to relapse, and drink alcohol. It is probable a loss of sobriety would impact adversely on her physical and mental health, and on the child’s welfare.
Events since application filed by father in September 2006
On 15 November, 2006, the orders of Dessau J. were varied, by consent. Orders provided that the paternal uncle, L, and/or the paternal grandparents be in substantial attendance during all times the father spent with the child pursuant to the orders of 3 December, 2002. The earlier orders were varied to provide that changeovers take place at the W train station, at the bus stop. Orders restrained the father from consuming or being affected by alcohol during any time he spent with the child. When the child was with the father, the father was to allow him to telephone his mother, his paternal uncle or his paternal grandparents when he desired and if the child became distressed and wanted to be returned to the mother, the father was to use his best endeavours to respect the wishes of the child.
Further orders were made on 15 May, 2007. They suspended the requirement for the paternal uncle and/or the paternal grandparents to be in substantial attendance. The orders of 3 December, 2002 relating to weekend contact were varied to provide for the father to collect the child from the bus stop at the W train station at 6:00 pm. each alternate Friday and return him to the same location at 10:00 am. on Sunday, if the father was not willing or able to take him to his football game, or at 6:00 pm. on Sunday, if the father took him to his football game. Those orders required the father to ensure that the child attended his football on any Sunday he was with the father. Both parents were restrained from consuming or being affected by illegal drugs whilst the child was in their care and were required to submit to random supervised drug screens at the request of the independent children’s lawyer. The orders provided that the father could communicate with the child by telephoning the child’s mobile at any reasonable time and as otherwise agreed. The father was to be responsible for the provision of ,and the cost of prepaid calls on, the mobile phone currently held by the child. If the father was not going to attend to collect the child at any time, he was to promptly notify the child of that on the child’s phone.
A note to the orders of 15 May, 2007 recorded that the father had declined the mother’s offer to spend time with the child each alternate weekend from after school Friday until before school Monday “by reason of his intention to obtain employment”. Other notes related to the times of the child’s football matches and football training, and the identity of the primary school then attended by the child in W.
The first time the father was to spend with the child pursuant to the orders of 15 May, 2007 was to be on 18 May, 2007. That did not occur. For the balance of 2007 the child spent neither alternate weekend time, nor holiday time, nor time on special days, with his father pursuant to the orders. The father’s evidence was that he saw the child every couple of months at his parents’ or brother’s homes. Although the orders provided for the father to notify the child if he did not intend to spend time with him, there is no evidence any such notifications occurred. There is no evidence the father ever sought to see the child pursuant to the orders, arrived at the changeover point to collect him or made any request to vary the provisions of the orders. The evidence supports a finding that, having obtained the order, the father ignored it.
Although this was not raised by the mother, it is at least arguable that the father’s failure to spend time with the child, as ordered, gave rise to an implied suspension of the orders.
I am satisfied that the child saw the father at Christmas 2007, at his paternal grandparents’ home. The father’s evidence was that he may have seen the child then. I am satisfied that there had been a long period prior to that when there had been no contact, or very little contact, and that the time with the child at Christmas 2007 was not initiated or arranged by the father. The father’s evidence was that at the end of the time with the child on Christmas Day 2007 he said “I will see you shortly”; he then gave evidence of making contact with politicians and other evidence not specifically referable to any arrangements made with the child or the mother. His explanation for not making any arrangement then to see the child again was that he did not want to “dampen the spirits” of the occasion.
I accept the mother’s evidence that on the child’s return from that family function he complained of his father’s drinking and behaviour, and said that the father had had an argument with his family. It is probable the child’s complaints reflected reality.
The father’s contravention application lists thirteen alleged contraventions, commencing on 11 January, 2008 and concluding on 6 June, 2008. The first related to an alleged contravention of the order requiring the child to spend half school holidays with the father at times to be agreed and, failing agreement, the second half. The remaining twelve relate to each alternate weekend thereafter. The father annexed a number of statements to the affidavit filed in support of his contravention application. The first paragraph of each is identical. It states:
On the (specified date) I sms/txt the mother and asked her to deliver the child for contact. I have a record of this SMS/TXT on my phone. The mother did not respond. I tried calling her, and she hung up. I attended at [W] train station at 5:45 pm. in accordance with the orders and stayed there till (variously 6:15 pm., 6:20 pm. and 6:30 pm.). The mother did not arrive.
The father also annexed handwritten statements relating to each alleged contravention noting that he was at the station and his son did not arrive. All save one carry a stamp from the W station and the name of a station officer or employee.
The father was unable to produce any of the alleged SMS messages sent to the mother. His evidence was of discarding them from his phone after speaking to his then lawyer. He was unable to say to what mobile phone number the alleged SMS messages were sent. He was unable to say what number he dialled when he rang the mother and she, allegedly, hung up.
I accept the mother’s evidence that she has had no communication whatsoever from the father since Christmas 2007, that she has no landline number, that to the best of her knowledge the father does not know her mobile phone number, and that she never received any of the text messages alleged.
It is probable that in the first half of 2008 the father and the child spoke on the phone on occasions and that the telephone calls were initiated by the child. Although the orders provide for the father to pay for credits on the child’s phone, that did not occur, and it was the mother and the child’s Uncle L who gave him money to put credits on his phone, from time to time. The child told his mother that on one occasion her older son, V (who is nearly 22) and his girlfriend took the child to the station to meet his father, as arranged between his father and himself, and that they waited for ages and that the father did not come. That was on 9 May, 2008, a day when the father’s evidence was that he was at the station from 5:45 pm. until 6:30 pm. The child also told his mother that on 14 March, 2008 his father rang the child on his mobile when he was at his paternal L’s home. His uncle’s de facto wife answered and told the father that the child did not want to see him.
The court has a window into the parties’ and the child’s views in July 2008, a month after the last alleged contravention, as Mr. S prepared an issues assessment that month. Mr. S noted the key issues as being a total lack of communication and trust between the parents; allegations of drug and alcohol abuse by both parents against the other; the mental health status of both parents; the child’s strong views regarding future parenting arrangements; the complete disregard by the father of the child’s stated wishes; the distinct lack of a child focused perspective on the part of both parents, but more so on the part of the father; and the long period in which the parents had been involved in litigation.
The child told Mr. S that he had a good relationship with his father’s brother, with whom he has regular contact on most weekends. He also had a good relationship with his paternal grandparents and other members of his extended paternal family. The child told Mr. S that he had not spent time with his father for most of the previous year (2007) and all of 2008. The reason given by the child was that his father had been drunk. He gave specific examples to Mr. S of being in his father’s care when his father was intoxicated, and of his father leaving him alone in his flat to go and buy more alcohol. He said that during Christmas 2007, when he was at his grandparents’ home, his father was drunk and tried to bribe him with $100 to see him. Asked what his father was like when drunk, the child stated that his father was yelling and that if he did not get his own way, he got angry. The child said he had had good times with his father and missed his father “a bit”, but for him to start seeing his father again, his father would have to “stop drinking, but I know that won’t happen, he just drinks on his weekends”.
The child told Mr. S that his mother said it was up to him and that she did not say he should not see his father. He told Mr. S that his mother used to drink until she gave up, and that he had a good relationship with her. While he stated (in response to a question) that seeing his father under supervision would be acceptable, he added “but he will just keep drinking. He won’t admit to it.” The child told Mr. S that earlier in the week his paternal uncle had rung him to say that his father had attended his uncle’s home on the weekend, was drunk, and had set fire to the carpet and put a hole in the wall. The child’s clear position was that his father would not and had not changed his ways.
The application then before the court by the father was an application for residence. Asked what he would do if the court decided he should live with his father, the child said he would not live with him and he would run away. He was firm in his views that the father has a problem with alcohol and that he would not see him outside a supervised environment. He was clear he would not live with his father, declined an invitation to be observed or interviewed with his father and when he passed his father in the waiting area of the court, ignored him.
Mr. S reported then that both parents had difficulty maintaining a child focus and elevating their son’s needs above their own. Both had limited insight into how their behaviours impacted on their son, but the mother did have somewhat more insight and was a little more child focused that the father. In a balanced summary Mr. S was critical of both parents. He described the mother as a somewhat frustrated woman, dealing with her own problems as best she could, but also trying to parent an adolescent boy within an envelope of non-existent parental co-operation and hostility from a former partner over a long period of time. He said the father presented as a man who demonstrated no capacity for reflective behaviour or function by which to enable him to consider the needs or feelings of his son, or the impact the proceedings were having on the child. The child’s mood was sombre, he lacked enthusiasm and he was possibly depressed, although some of those observations may have been due to an illness he apparently was experiencing.
Mr. S recommended that the child’s wishes should be respected. If he wished to do so, there should be some contact under supervised conditions, at a contact centre. He recommended an updated family report by Ms. E, who had prepared a report earlier in the litigation, and that both parents be psychiatrically assessed.
On 14 August, 2008 orders provided for the preparation of the updated report and for the parties to be psychiatrically assessed.
The mother attended Dr. K for psychiatric assessment on 27 November, 2008. The father was advised of appointment times with Dr. K but refused to attend.
Ms. E saw the mother, the child and Mr. C on 12 December, 2008. The father did not attend. It is clear the child had anticipated seeing his father when with Ms. E a second time, and was disappointed when he failed to appear.
The father’s evidence about contact with the child in the second half of 2008 was inconsistent and confusing. It is likely any contact was initiated by the child and most (if not all of it) was by phone. In December 2008 the child told Ms. E that he spoke with his father every three days. The child may have arranged to see his father at the home of either his uncle or his paternal grandparents at some point in the second half of 2008, but the court could not be certain of that.
With Ms. E in December 2008, the child was quiet and polite. He spoke of the time he had had off school, with flu and hay fever. He told Ms. E that he spent time with his Uncle L almost every weekend and that he would be spending part of his summer holidays camping with his uncle. He reported that he got on well with his mother’s boyfriend, Mr D, who had been living with them for about six months. In terms of time with the father, the child said that he saw his father last Christmas (that is, Christmas 2007) and that his father was trying to arrange for them to spend time together. He told Ms. E he was going to his father’s graduation the following week with his grandma, who would pick him up from his uncle’s home. The child told Ms. E he would be happy to see his father with her. Asked about telephone contact he said he rang his father if he had credits, or if his father had credits, he rang the child. He said he would see his father by himself as long as he was not drinking but he did not want his father to drink when he was around. He would be happy to see his father about once a fortnight, as long as it did not interfere with other commitments, saying “when I am not busy . . . as long as he is not drinking . . . I don’t see why he can’t give up if my mum can and she is a chronic alcoholic”. Asked his main worry, the child told Ms. E it was his father, but could not be specific as to whether his worry was about seeing him or not seeing him. The preoccupation clearly made him unhappy. Ms. E formed the opinion he was protective of his father and did not want her to think poorly of him.
Ms. E’s recommendation was that the child live with his mother and spend time with his father each alternate weekend from 6:00 pm. Friday until 6:00 pm. Sunday, provided that the time not occur if the father were consuming or affected by alcohol, the child had some other activity in which he preferred to participate and the child had notified his father that he was unable to attend.
When the case was before the court on 12 January, 2009 the father advised that he would agree to orders as recommended by Ms. E, including the provisos relating to the child’s non-attendance. The mother did not agree to orders in those terms; it was her position that orders should provide for the child to spend such time with his father as he and his father agreed.
By the time of the trial, the father had changed his position and no longer agreed to the provisos. He had abandoned his application for residence but sought that the child be with him each alternate weekend from 5:00 pm. Friday until 5:00 pm. Sunday and for half of all school holiday periods. The mother sought an order for sole parental responsibility for the child (as opposed to the existing situation) and an order that the child spend such time with his father as he and his father agreed.
It is clear that in late 2008 the child reached out to his father, seeking to spend time with him. Staying at his grandmother’s home, the child arranged to go with her to his father’s graduation on 17 December. He did not stay overnight with his father but returned to his grandmother’s home in T. Asked why the child did not stay with him, the father initially said that it was “not fitting” that his mother go home alone on the T train line, as drastic things occur on it, and it was better that the child accompany his 56 year old mother home. Pressed about the propriety of putting the child in that protective role, the father changed his evidence and said it was his mother’s idea, not his, and that she said “come on [child], lets go home”. It is probable that the outing was a success and that it had never been envisaged that the child would stay with his father.
It is likely the child then arranged to see his father the following weekend, an arrangement again made through his grandmother. The child may have been staying with his Uncle L. He came to his father’s two-bedroom flat on Friday 19 December; the father’s evidence was that a mattress was taken from the bed on which the female occupant sleeps and put in the father’s room for the child to sleep on. Much of his weekend seems to have been spent playing video games and at the computer and the father also spoke of sightseeing around Melbourne. The father agreed that the child raised concerns with him about his drinking. When it was put to him that he told the child he had changed, he said “No, I said you met my friends on graduation day – see for yourself”. It was then that he said he had stopped drinking something like 15 years ago, a statement which is unlikely to be correct.
The father’s evidence was that the child went home on the morning or around lunchtime on Sunday 21 December. I am satisfied that when the child left, no arrangement was made for another visit. The father gave evidence, which appeared to being made up as he went along, about telling the child he would see him soon for half of the holidays; his evidence was that he thought he would get the latter part of the holidays, starting on 23 January. It became clear that he thought school resumed in mid-February and that the school summer holidays are of two months duration.
The child spent a good part of the school summer holidays with his Uncle L and from there he arranged to see his father on the Australia Day weekend. His grandmother dropped him off at T station and the child went to his father’s home. They went to see Collingwood memorabilia at the Lexus oval, did some shopping, played video games and worked on the computer. On Saturday 24 January the father said they were about to go and play cricket but both agreed they were too lazy and went to Federation Square instead, where a band was playing. In the afternoon there were more video games and time at the computer. His evidence was that the child went home on the morning of Sunday 25 January. When initially asked what they did on the Sunday, he said they had breakfast, the child packed up and he (the father) escorted the child back to the station.
Cross-examined, the father admitted that he and the child had had an argument. His evidence was that some weeks previously, he met a man in Bourke Street who was practically homeless and in whom he confided. The man was gay and when the father told him that he was not interested in that friendship, the man threatened and blackmailed him, saying that if he did not comply with his wishes, he would tell the father’s parents and the child bad things about him (the father). According to the father, this man rang his parents many times, having got their number from the father. The man was called A and, on occasions, P.
The father’s evidence when cross-examined was that P rang him on his phone on the afternoon of Saturday 24 January and the child answered. P was abusive and threatening to the child, which alarmed the father, as the father described P as vicious and keen to “extract revenge” by targeting the child and his parents. He said he was sufficiently concerned to tell the child that night that he had to leave. Because he did not want the child to blame himself for a failed weekend, the father said something about a computer virus, as an excuse, at about 9:00 am. on the Sunday. He said he rang his mother and told her he would deliver the child home and she said that would be OK. He put the child on the train at Parliament Station. Asked about the child’s reaction to the abusive phone call, the father said that the child expressed the view that the man on the phone was drunk.
On 2 February, 2009 the father applied for an intervention order against P and, remarkably, an interim ex-parte intervention order was made, naming the defendant as P, surname unknown, of no address. The application is returnable on 25 February, 2009. It is trite to say that such an order could not bind a defendant so named, being as capable of referring to everyone called P in Victoria as to a particular P.
In his application for an intervention order the father said that P had threatened to harm him, his son and his parents and that when the child answered the phone, P told the child he was going to harm him and his father. He said “my son was very distressed and had to go home to his mother’s”. The impression from the complaint is that the child had to go home on Saturday, the day of the phone call.
Another account of events during that weekend is contained in an email the father sent to the ICL on 2 February, 2009, which reads as follows :
During the recent weekend (later part of January) in which the child […] exercised contact with his father, certain events unfolded beyond the father’s control, that has had adverse affects towards the recent relation between the two.
The father advises that due to these uncontrollable events, he has had to ask him son […] to abstain from further contact with him until the problem is addressed. These actions were necessary as the father feared for the safety of the child.
The enclosed documents provide a clearer understanding of the events that have been unfolding over the last six weeks.
The mother’s evidence was that the child had been staying with his uncle. The arrangement to spend time with his father was made from his uncle’s home; she was quite happy with the arrangement but did not know of it until the child returned to her home, the following week. The child told her that his father had been abusive after alleging the child was responsible for a computer virus on the father’s computer. He said he had had to catch a train at 9:00 pm. and had no money, as the father had taken his last $10. He was terrified of travelling on the T line. He rang his grandmother, who came and collected him, and took him to his uncle’s home. He said nothing to his mother about a phone call from P or anyone else but said that his father blamed him for the computer virus, and had thrown him out. The mother described him as a very angry little boy. The child told her that his uncle wanted to ring the father when he was told what happened, but the child told him not to. The child also said that he had deleted his father’s number from his telephone and wanted to have nothing more to do with him.
The father maintained his evidence of a fictional computer problem, invented as part of a strategy to remove the child from his home so he would not be at risk from P. He agreed that he told the child to leave and not come back, a proposition hard to see as part of a strategy aimed at ensuring the child did not blame himself for “the failed weekend”.
The account the child gave to Mr. S on 10 February is consistent with the account he gave his mother but provides significantly more detail. It makes chilling reading. The child told Mr. S of the previous weekend he had spent with his father, and of the pleasant stay he had at that time. He spoke of initiating phone contact with his father after that and arranging to spend the weekend of 24 and 25 January at his father’s home, and of arriving on Friday 23 January. He said his father was calm and relaxed and the weekend was enjoyable and uneventful until late Sunday afternoon. The child’s account of events since then is as follows :
6/ [The child] stated that at approximately 6 pm on Sunday the 25th January he decided to use his father’s computer. “I went on “Google” and there was a virus…it came up and all this porn come up. I go, dad you got a virus. He started swearing at me, saying ‘fucking little cunt, dog, rat, arsehole’….I kept quiet but he kept swearing at me, then he started putting mum down…saying ‘she had 4 different kids to 4 different fathers, she’s a slut’…..not nice words…..’you shouldn’t live with your mum you’re worthless, nothing …she’s nothing you’re better living with me’. He kept on going for about an hour. Then he said ‘you fucked me up with my job, he said I can’t get a job now”.
7/ [The child] indicated that he sought refuge from his father’s onslaught and tirade in a bedroom, however “dad kept on going” (with his verbal abuse). Whilst in the bedroom, [the child] called his uncle to report what had happened and then his “nanna” and asked her to pick him up at the [T] railway station.
8/ At one point [the father] came into the bedroom. [The child] stated “after I finished talking (to his grandmother) I was crying a bit because he ([the father]) was talking about my brother and mother”. [The child] stated that when his father came into the bedroom and saw him crying he stated “Good cry you fucking little cunt?” Asked if he responded, [the child] stated “I just kept my mouth closed”. [The child] then indicated to his father that he had called his grandmother, and that he would be picked up at the [T] railway station by her. His father responded “I don’t care you’re going home”. His father also stated to him “I never want to see you again”.
9/ [The child] stated that his father accompanied him part of the way to the station however he did not have a valid ticket. The ten dollars that [the child] had on his person had apparently been used by [the father] to buy cigarettes. [The child] elaborated that [the father said] “He said ‘give me your money you owe me fifty bucks to fix the virus’, so he says ‘give me ten bucks I need to get smokes’”.
10/ [The child] indicated that he had been scared on the train on his way to his grandmother’s home and feared he would be “bashed” by some youths that were on the train.
11/ The issue of why [the child] had initiated contact with his father was discussed with him. He indicated that whilst he had expressed some reservations about spending time with his father, he decided that his father deserved “one more chance”. As such he decided to contact his father and spend time with him. [The child’s] contact with his father on both the occasions that he instigated this was not revealed to his mother. [The child] stated that he feared his mother would be “upset” and refuse him permission to go. After the first stay, [the child] did in fact tell his mother and he indicated that [the mother] had been “alright” with it. [The child] added that “My mum has never stopped me”. (From having contact with his father)
12/ [The child] expressed sorrow and seemed quite unhappy during the time that he recalled the above events to this writer. He stated that his father’s behaviour towards him had been abusive, and that “the way he spoke to me that weekend he scared me, I thought he was going to hit me”. On the basis of his experience with his father, [the child] stated that he did not wish to have any form of contact or dealings with his father in future.
13/ This writer canvassed a number of options that [the child] might consider, including professional supervision with his father. All were strongly rejected by [the child].
[The child] stated to this writer that he wanted his father to return “my cricket gear, play station stuff and my ten dollars”.
Although Mr. S’s report was not adduced until after the father gave evidence, the account the child gave to Mr. S was consistent with an account which was put to the father in the course of his cross-examination, which, it was put, had been given by the child to the ICL. At that time the father denied any of the abusive behaviour recounted by the child. He admitted to taking $10 from the child to buy cigarettes but said he did not know it was the only money the child had.
From the father’s perspective, events on the Australia Day weekend were an unfortunate “glitch”. He saw no reason why they should have any impact on his relationship with the child; if they have adversely affected it, the mother must be responsible for that, in some way.
Mr. S and Ms. E agreed on the devastating and traumatic impact of the father’s behaviour upon the child. In his report, Mr. S expressed this opinion :
14/ The revelations made by [the child] to this writer appear to be serious and are of considerable concern. It is not in the interests of any child to be spoken to and treated in the manner described by [the child] by a person in a position of trust. It would appear that [the child], of his own volition attempted to somehow bridge the gap that has existed between him and his father over a number of years. What appears to have begun reasonably well has sadly, turned into situation that has emotionally hurt [the child], and most likely driven a wedge between the father son relationship that will be difficult to reverse. As a teenager [the child] is at a very vulnerable and important period of his life. He requires patience, security, guidance and unconditional love. Children in this age range are coming to grips with a variety of issues both physical and emotional. One way of dealing with the new and emerging world order in their lives is to sometimes see the world very much as “black and white”. There is little room for compromise or concession and lots of room for confrontation and challenge. Teenagers do not respond well to being challenged, let alone being verbally and emotionally abused and degraded by a person that they have an expectation will nurture, love and protect them. [The father’s] behaviour towards his son was brutal and foolish to say the least. If [the father’s] behaviour towards his son is something that he does not have control over, then this is even more concerning. [The child] reached out to his father as this writer speculated in the last issues assessment that was prepared. Regretfully, it would appear that [the father] did not make good use of the opportunity that he was afforded to enhance and develop his relationship with his son. It is likely that had [the father] reacted differently and built on his relationship with [the child], his wish for [the child] to live with him or continue to see him on a regular basis may have been actualised in the future without the intervention of the Court.
15/ Given the events that appear to have transpired so far, and not withstanding any findings to the contrary that the Court may make, the following recommendations are made.
-That contact between [the child] and his father be reserved as per [the child’s] views and wishes.
-That if [the father] continues with his application, he undergo a psychiatric evaluation, and that there be no further decisions made in relation to [the child] spending time with his father pending the results of such examination.
Mr. S’s opinion was that orders which provided for fixed period of time with the father were simply not viable. Whether the father’s behaviour on 25 January was “a one-off or not” it would have had a profound and negative affect on the child. A child who reached out to his father had been subjected to a tirade of abuse and put emotionally and physically at risk in circumstances where the father demonstrated an apparent inability to contain himself and see a situation through an adult perspective, and an inability to control his emotions and his anger. When the father’s own account of the weekend was put to Mr. S, he said it would not make him any more comfortable.
Mr. S’s view was shared by Ms. E, who spoke of the experience as devastating for the child and quite traumatising.
PRIMARY CONSIDERATIONS
When determining what is in a child’s best interests the primary considerations are :
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These are consistent with the objects set out in s.60B(1).
It is trite to say that the child would benefit from having a meaningful relationship with both of his parents, so long as that does not expose him to psychological or physical harm. Dr. K’s view was that, in principle, children do best with parents who are reasonable from a child’s point of view. The benefit and usefulness of a relationship between an adolescent boy and his father depends on the relationship; if it is good, it is very helpful. Sadly, in this case, one could not find the relationship to be good and the court must find that the child needs to be protected from the psychological and physical dangers of his father’s aggressive, self-indulgent and uncontained behaviour.
The father’s case is that he is an intelligent man of academic achievement and that the child needs a relationship with him to temper the mother’s inadequacies, which have the capacity to impact profoundly and adversely on the child’s life. There is logic in such an argument and problems the mother experiences are thus relevant to the time, if any, that the child should spend with his father. That said, the mother remains the undisputed resident parent and it was for that reason that some of the father’s cross-examination was curtailed.
The father agreed that he last spoke with the child on 25 January. That is, notwithstanding his account of events that day, he has not made contact with the child since. On his own evidence he told the child to leave and not to come back; he has done nothing which would leave the child with the impression his view has changed.
I must find that I can have no confidence that the father genuinely wants a meaningful relationship with the child. Rather, he would like to assert a perceived parental right to see his son, if and when he likes.
Despite orders providing for him to attend on Ms. E and Dr. K, the father attended neither. He was perfectly content to breach those orders, allegedly because he saw no value in any such reports, as experts simply reiterate earlier critical reports of others. A reasonable inference is that he was not prepared to be subjected to expert scrutiny as he did not believe it would assist his case.
Despite his asserted desire for a meaningful relationship, and his complaints about the mother’s poor parenting, particularly in the education arena, the father could not say what school the child attends. He has never attended the child’s school, attendance precluded by no order. He could have been playing a role in the child’s day to day schooling but it was clear he has no interest in doing so. He said he had written letters to the school but I am satisfied they related to evidence collection, rather than support for the child. He knew so little of school routines that he believed the school year started in mid-February. He has attended no parent/teacher interviews since the child has been in secondary school and made no enquiries about them. He has attended no sporting activities in which the child is engaged and was not prepared to even concede that the child likes sport, despite the orders and notations of 15 May, 2007, and the evidence before the court. He has met none of the child’s school friends.
In May 2007 the mother had proposed that the father collect the child from school on Friday and drop him back at school the following Monday when he was to have weekend time with him, an offer the father declined. When counsel for the ICL suggested a similar arrangement now, he again declined. He said “I can’t commit” and “he (the child) has to go home and change”. It was put to him that by collecting the child from school on Friday afternoon he could play a role in his school life, but he was not interested in that argument. He said the child should go home from school, change and pack a bag to spend time with him and then take a bus to the W station where he would meet him, because “it’s convenient”. His rationalisation for not wanting to collect the child from school was that the child’s teachers would be sorry for the child if that occurred because the father’s virtues as the superior parent would be so apparent, they would chorus a preference for a residence change.
The father’s attitude to events of 25 January, and the submissions made by him, satisfy me that he has gained no insight into the destructive effects of his behaviour on his relationship with the child. He accepts no responsibility for problems and can only attribute them to the mother’s poor parenting. The child is now traumatised and frightened; as Mr. S said, the relationship is tenuous. Ms. E described the behaviour reported by the child as being financially, verbally and emotionally abusive and, apropos sending the child home alone on a train line (a line which, the father asserted, was too dangerous for his 56 year old mother to travel alone at night), was to be reckless with the child’s safety.
Not infrequently there is a tension between the two primary considerations, but the court’s emphasis must always be on protecting a child from physical or psychological harm. It must find in this case that the child is likely to be exposed to both in his father’s care.
ADDITIONAL CONSIDERATIONS
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The father’s submission was that the court should place no weight at all on the child’s views or, indeed , on any of the child’s reported comments as the child is too young and immature. The father said no weight should be placed on his views because his mother and her boyfriend go to AA, the child is not doing well at school, he spends time with his Uncle L, who is an alcoholic and drinks too much, he lives in a group of alcoholics, and the mother has problems with her own mother, who did not nurture her. It may be that by listing these criticisms of the mother the father meant to submit that the mother and other people had influenced the child’s views.
There is no doubt that the mother is hostile to the father and that the child is aware of that. On the other hand, the child has consistently said that his mother does not stop him seeing his father or say he should not see his father. She is happy for him to spend considerable time with his paternal relatives, which is to the child’s advantage. While she herself did not make the recent arrangements which resulted in the child spending time with his father, she was content for that to occur and took no steps to stop him making further arrangements when with his uncle or grandmother.
When it was put to the father that the child has expressed his aversion to his father’s drinking and behaviour to Mr. S and Ms. E, as well as his mother, the father responded by saying that the child has the maturity and intellectual level of a 9 or 10 year old (later amended to a 10 to 11 year old) and no weight should be placed on his views for at least another two years.
Ms. E’s evidence was that the child has developed a degree of autonomy and in some ways is more mature than most fourteen year old boys. She said the question of whether he should spend time with his father is appropriately decided by the child. The child would be helped psychologically by having control of the decision, given that so much of what has happened in his past has been chaotic and out of control. Mr. S shared those views. The opinion of both Mr. S and Ms. E is that the mother’s approach is absolutely correct; she should leave it up to the child to decide what time he spends with his father. The child has demonstrated a capacity to reach out to his father and make arrangements to see him, arrangements supported by the paternal extended family. He should now be left to make decisions as to future time with his father.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The evidence satisfies me that the child’s relationship with his mother is well established and they are warmly attached. He is protective of her and of his little brother. He has accepted and coped with her difficulties in the past and if she can maintain her sobriety and the stability which that brings, that will be a bonus for them both.
When Ms. E saw the family in 2007 she observed that the father was less responsive to the child than most other parents in similar circumstances, but that the child was attentive to his father. As the father did not attend Ms. E when the second family report was being prepared, she was not in a position to make any observations of the attachment between him and the child. As found earlier, there was little empathy in the way the father spoke of the child.
I am satisfied the child has an excellent relationship with his paternal grandparents and his Uncle L. Somewhat unusually, the problems the mother has with the father and the hostility between them has not impacted adversely on the child’s relationship with his extended paternal family. The father was swift to denigrate his brother L, who he called an alcoholic. The evidence does not support any such finding. Rather, it supports a finding that the relationship is very important to the child and has provided a stable emotional buffer. The child admires his uncle and loves working with him; he is keen to take up a trade apprenticeship himself, a course the father does not support. The father demonstrated no capacity to understand the importance of that relationship to the child and it is probable he would only try to undermine it, if given the opportunity.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(f)the capacity of :
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
As found, and notwithstanding his asserted focus on the importance of education, the father has played no hands-on-role in the child’s secondary schooling. He was content to say that the child would not pass Year 11, or even Year 10 or even this year, which is Year 8. His concerns about absenteeism are legitimate; the child missed 41 days school in the first semester of 2008. He spoke to Mr. S of various illnesses and was ill the day he saw Mr. S for the issues assessment. He wants to do an apprenticeship and hopes to obtain an exemption, with his uncle’s help, which would allow him to start it in 2010. I note that in Dessau J’s judgment she referred to the child having a significant learning disability but nothing was said of that in these proceedings. The report before the court, relating to the first semester 2008, suggests the child struggles in some areas; his effort and class behaviour were best in subjects like food and technology, maths, music and physical education.
The father demonstrated no capacity to see the world through the child’s eyes or to value the things that are likely to be valued by the child, such as friendships and sporting and recreational activities. He said that when the child was with him he would not take him to sporting or social activities in W because the child would go to “better and different ones” with him. There was no sense he understood the importance to a teenager’s development of maintaining interests and friendships and of the teenager having genuine input into decisions about his life.
Despite his professed desire to support his son, the father pays minimum child support for him and has not fulfilled his obligation, pursuant to orders, to maintain credits on the child’s phone. He was critical of the mother for smoking, but his own evidence was of taking $10 from the child on 25 January (I am satisfied that was all the money the child had) so he could buy cigarettes.
As found earlier, the father took no steps to implement orders for time with the child in 2007 and I am not satisfied he sent the SMS messages or made the phone calls he alleged in the first half of 2008. He did not act to arrange time with the child in the second half of 2008 and early 2009; the child initiated the arrangements.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The father saw no potential damage to his relationship with the child in forcing the child to come to his home on alternate weekends, against the child’s wishes. Asked what he would do if the child wanted to leave, he said he would discuss it and “I would escort him home”. Having regard to events of 25 January, the court could have no confidence that he would respond to a request or a demand to leave in a rational way.
Mr. S’s evidence was that both practically and psychologically the court should not impose contact on the child. The child has faced a complex family situation. There is no parental alliance and he has been caught in the middle of continuing hostility and litigation for years. He reached out to his father of his own volition, trying to take control of the relationship and to give his father another chance. His father rejected that opportunity and in the child’s terms, he has been let down, yet again. He is a traumatised child and any moves to force contact with his father are likely to have negative psychological repercussions.
Ms. E echoed these views. She said the over-riding sentiment she wanted to express was that the child should not be forced to see his father and to do so would be detrimental to the child’s well-being.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
It is not practical difficulties or expense which are affecting the child’s right to maintain person relations and direct contact with his father, but his father’s behaviour.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
It is probable the child has experienced depression and he has struggled at school. His mother’s alcoholism impacted adversely on him and their life. Nevertheless, he has friends and a reasonable social life, enjoys sport, and has good relations with extended family. His maturity is demonstrated by the fact he has taken most of the responsibility for maintaining a relationship with his father. Ms. E described him as a likeable boy, an intelligent boy, a perceptive boy, and a mature boy. He is loving and helpful towards his mother and little brother and, up until 25 January, was protective of his father, too. It is his father’s behaviour which has destroyed the child’s trust in him.
(j)any family violence involving the child or a member of the child’s family;
(k)Any family violence order that applies to the child or a member of the child’s family, if :
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
The father’s evidence was that another child at the child’s school sought and obtained an intervention order against the child. Save for that assertion, there was no evidence before the court but it may be correct. The father did admit that while he was studying for his recent Masters’ degree another student successfully applied for an intervention order against him. His evidence was that there was no justification for this and she did it because she was humiliated after he ignored her advances. I do not find either order of relevance.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The mother’s evidence is that the child has had enough. That is consistent with the evidence of Ms. E and Mr. S. The submission of the ICL was that any requirement for joint decision making would only be conducive to further litigation and would not be in the child’s best interests.
The court would be very concerned were further applications to be filed, seeking a structured regime of time between the father and the child. In saying that I am not referring to any appeal against orders made in this round of proceedings. If the father did file such an application (absent a successful appeal and a rehearing) he might anticipate an application by the mother or the ICL for an order pursuant to s.118 of the Family Law Act 1975 restraining the making of further applications without leave. The child must be protected from the litigation and from the potential effects of the litigation on his mother.
(m)any other fact or circumstances that the court thinks is relevant;
I take account of the objects and principles set out in s.60B of the Family Law Act 1975. As with the primary considerations, priority must be given to protecting the child from physical or psychological harm. His right to spend time on a regular basis, and communicate on a regular basis, with his father has to be interpreted in the light of his best interests, and his best interests will not be served by the orders his father seeks.
Presumption of Equal Shared Parental Responsibility
I am satisfied the presumption does not apply, in the light of the father’s emotional abuse of the child. If it did apply, it would be rebutted as being against the child’s best interests. In these circumstances, I need not consider whether spending equal time with each parent would be in the child’s best interests, or reasonably practicable, or whether spending substantial and significant time with the father would be in the child’s best interests, or reasonably practicable.
There is an order on foot, providing for equal parental responsibility, made prior to the 2005 statutory amendments. Notwithstanding that, the father has not sought to play any part in decisions about the child’s schooling and for long periods elected not to spend any time with his son, or time only when organised by his son at the home of the paternal grandparents. The hostility between the parties and the importance of the mother maintaining sobriety militate against them sharing responsibility for important decisions. A requirement for this is likely to lead to further litigation and would not be in the child’s best interests. In all the circumstances of this case, I am satisfied the mother should have sole responsibility for the child, as advanced by both the mother and the ICL.
I am satisfied that the evidence overwhelmingly supports a finding that orders for a structured regime of time between father and son should be discharged and the child should spend such time with his father as the child and his father agree. The child has shown a capacity to achieve this in the past and it may be he will reach out to his father again in the future. I am satisfied the mother will not stand in the way of that, notwithstanding her view of the father.
Contravention Application
I start with two preliminary matters. After final submissions concluded, counsel for the ICL advised of an order made by Young J. on 7 July, 2008 when the father's contravention application was first listed before him. Paragraph 2 of orders made that day provides :
That the father have leave to withdraw the form 18 contravention application, subject to a right of reinstatement of the orders sought therein on 14 August 2008 with the then approval of the trial judge.
To make sense of that paragraph, which appears to contain a couple of typing errors, one needs to know that the applications to vary the parenting orders was listed before me on 14 August, 2008 and the parties and his Honour were aware of that on 7 July, 2008.
The father certainly spoke of the contravention application when this case was before me on 14 August, 2008 and when it was before me on 12 January, 2009. While there may have been no formal application to reinstate his contravention application, I am satisfied fairness to the father demands that that be deemed to have occurred.
The second point is this. The father spoke a number of times of three previously proved contraventions. No order on the Family Court file contains any such findings. On the last day of the trial, it became apparent that there had been contravention proceedings in the Federal Magistrates’ Court. For the record, I will summarise those.
On 23 July, 2004 the father filed an application seeking that the mother be dealt with for contravening the parenting orders of 3 December, 2002. It was returnable on 14 September, 2004. On 14 September both parties appeared and it was adjourned to 29 November, 2004. On 25 November, 2004 the father filed an amended contravention application; that stood in lieu of the original contravention application of 23 July, 2004.
The amended application came before the court on 29 November, 2004 and was adjourned to 1 February, 2005. On 1 February it was adjourned to 30 March, 2005, by consent. On 10 March the father filed another contravention application, returnable on 30 March. From that point, there were two contravention applications before the court. On 30 March they were adjourned to 18 May. The mother was represented on 30 March, 2005.
An order tendered shows that on 18 May 2005 Phipps FM ordered, pursuant to section 70NG(1) of the Family Law Act 1975, that the mother attend a parenting program, if assessed as suitable. The order notes a finding that the respondent had contravened the orders of the Family Court made 3 December 2002 by failing to provide the child for contact as alleged in paragraph 7 of the amended contravention application filed 25 November 2004 and in the contravention application filed 10 March 2005.
The order states on its face that the mother did not appear and the findings and orders were made in her absence. That is, on the fifth occasion the case was before the Federal Magistrates’ Court, ten months after the initial filing, and in the absence of the mother, the federal magistrate determined the applications. On previous occasions the mother had been present and at least one adjournment was made by consent. The mother had been represented when the case was adjourned to 18 May, 2005. No order was made to require the mother to attend. No warrant was issued for the mother’s arrest, to ensure attendance. No plea was taken from her. Perhaps contravention applications are routinely heard in the absence of the respondent in that court.
Legal principles relevant to contravention applications
Section 70NAC of the Family Law Act 1975 sets out the meaning of contravening an order. It provides that a person is taken for the purposes of the division to have contravened an order affecting children if, and only if :
the person bound by the order has intentionally failed to comply with the order, or made no reasonable attempt to comply with the order.
Section 70NAE sets out the meaning of reasonable excuse for contravening an order. A person is taken to have had a reasonable excuse for contravening a parenting order which requires a person to spend time with a child if :
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person.
Subdivision D provides for the situation where a contravention is established but the court finds there has been a reasonable excuse for it. Section 70NDB provides that:
(1)If :
(a)the primary order is a parenting order in relation to a child; and
(b)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the court :
(c)may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and
(d)must consider making that kind of order.
When the contraventions were put to the mother, she did not dispute that the child had not been made available on each of the 13 occasions. She did state that she had a reasonable excuse for not making the child available on each occasion.
As noted earlier, the father had not taken up the opportunity (indeed, the order) to see the child from 25 May, 2007 until the end of 2007, and it is arguable the order had lapsed or been notionally suspended through his omission to act on it, and acquiescence in its theoretical breach. As this was not argued, the point will not be elaborated.
It could also have been argued that the existing orders required the parties to agree on the father’s time with the child in the summer holiday period and only if they could not agree was it to be the second half. There being no evidence of any attempt – and failure – to agree, the default provision could not be said to be triggered. Again, it is not useful to elaborate, as the point was not taken.
I have found I am not satisfied that the father told the truth when he deposed to the various text messages and phone calls deposed to, and to the mother hanging up on him on each of the 13 occasions. The mother initially admitted that the child was not there on all 13 occasions. She only has the child’s word for it that he was there on one occasion. I accept that the mother’s account of other things said to her by the child has been corroborated by the child and he may well have gone with his older brother as he said, he himself having made the arrangement with his father. However, I act on the basis that the child did not attend on any one of the 13 occasions.
I am satisfied that not allowing - that is the word used in the legislation – the child and the father to spend time together was necessary, on each occasion, to protect the health and safety of the respondent. I accept her evidence of abuse directed at her in the past. I am satisfied that by January the child had told the mother that his father was drunk, yelling and angry at Christmas 2007 at his own parents' home, and there was no reason for her to believe that the father’s behaviour would be different to that she had experienced in the past, or been modified.
I accept that in January 2008 the mother was frightened and intimidated. I am satisfied that in January 2008 her sobriety was recent, only some three months old, and she legitimately feared putting herself in situations which she thought might render her vulnerable to a relapse. She has attended Alcoholic Anonymous in the past and had not been able to maintain sobriety for any sustained period; this is her longest period of sobriety since a teenager. It would be absurd to find that she should have been taking the child to the changeover point every second Friday between May and December 2007, and on the middle day of the school holidays and alternate Fridays thereafter, and waited – frightened and anxious – for a period to see if the father deigned to appear. What she was told of his behaviour at Christmas 2007 can only have exacerbated her fears.
Notwithstanding the finding of reasonable excuse, pursuant to s.70NDB(1) I must consider making an order compensating the father for the time lost. I do consider that, and I reject it. I reject it for the same reasons the court has refused to fix a regime of time between the father and the child, because to do so would be contrary to the child’s best interests. I am not satisfied the father did and said anything to the mother or the child to indicate he planned to commence spending time with the child pursuant to those orders on 11 January 2008, despite having seen the child at his parents' home at Christmas 2007. I am satisfied he did and said nothing between 11 January 2008 and the last alleged contravention in June 2008.
On the evidence before me there was no reason whatsoever for the mother or the child to believe that the situation which prevailed between May 2007 and January 2008 was about to change. It could only have been contrary to the child’s best interests and emotional health for the mother to have taken the child every alternate weekend in 2007 to the station to find his father was not there. There was no reason to do otherwise in 2008.
Section 70NDC provides that having decided that it is not in the best interests of the child to make an order for compensatory time with his father, the court may make an order that the father pay all or some of the mother's costs of the contravention application. The contravention application was heard, without demur from the mother's counsel, with the parenting application, a course with the potential to only prejudice one person, being the mother. The court having determined that there was no prejudice to the parties in taking that course, the hearing of the contravention application added little to the time which would have been taken by hearing the application for parenting orders alone.
The mother is legally aided. Having regard to all the circumstances, including the evidence of the father as to his employment situation, I am not satisfied that justice would be served by making an order that the father pay the mother's costs of the contravention application.
The court having found that the mother had a reasonable excuse for the 13 alleged contraventions and that it would not be in the best interests of the child to make a compensatory order, the contravention application is dismissed. All previous parenting orders and injunctions relating to the child will be discharged. The mother will have sole parental responsibility for the child. The child is to live with the mother.
The child is to spend such time and communicate in such ways with his father as is agreed between the father and the child. The father will be at liberty to obtain school reports and photo forms from the child’s school at his expense, if any, and orders will provide the independent children's lawyer to serve a sealed copy of the order on the principal of the child’s current school, which will stand as authority to do that. The initiative rests with the father; it is not the mother's obligation to send these documents to him.
All extant applications will be otherwise dismissed. The reasons for judgment will be transcribed and a copy made available to the parties. Copies may also be made available to Ms. E, Mr. S, Dr. K, the principal (or teachers or others working with the child) of the child’s school or TAFE college and any police member or DHS worker involved in any subsequent investigation referable to the child.
I will order that the independent children's lawyer be discharged one month from this date or, in the event a notice of appeal is filed, on determination of the appeal. I reiterate my thanks to the ICL and counsel briefed by him. The court was fortunate that such experienced and able legal practitioners performed those roles. They maintained a focus on the child and his best interest, to his ultimate advantage.
I certify that the preceding
137 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2009.
…………………………………………
Associate.
Key Legal Topics
Areas of Law
-
Family Law
-
Statutory Interpretation
Legal Concepts
-
Remedies
-
Procedural Fairness
-
Costs
0
0
1