Mallory & Alden and Alden
[2009] FMCAfam 61
•27 January 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MALLORY & ALDEN and ALDEN | [2009] FMCAfam 61 |
| FAMILY LAW – Parenting orders – unacceptable risk. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA |
| Marriage of A (1998) 22 Fam LR 756 M v M (1988) 166 CLR 69; (1988) 12 Fam LR 606 |
| Applicant: | MR MALLORY |
| First Respondent: | MS A ALDEN |
| Second Respondent: | MS G ALDEN |
| Independent Children’s Lawyer: | VIVIEN CARTY |
| Intervenor: | DIRECTOR-GENERAL, DEPARTMENT OFCOMMUNITY SERVICES |
| File Number: | NCC 296 of 2007 |
| Judgment of: | Lapthorn FM |
| Hearing date: | 30 September 2008 |
| Date of Last Submission: | 10 November 2008 |
| Delivered at: | Newcastle |
| Delivered on: | 27 January 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Carl Boyd |
| Solicitors for the Applicant: | Boyd Olsen Lawyers |
| Solicitor for the 1st respondent: | Mr Clive Hill |
| Solicitors for the 1st respondent: | Longman Hill |
| Counsel for the 2nd respondent: | Mr David Day |
| Solicitors for the 2nd respondent: | Jones Rolfe Rudd Solicitors |
| Counsel for the ICL: | Mr Michael Graham |
| Solicitors for the ICL: | Vivien Carty |
| Counsel for the Intervenor: | Mr Roger Harper |
| Solicitors for the Intervenor: | IV Knight, Crown Solicitor NSW |
ORDERS
That all previous orders regarding the children [L] born in 2003 and [S] born in 2004 be discharged.
The children live with the second respondent maternal grandmother.
That the maternal grandmother have sole parental responsibility for the children provided that:
(a)She do all acts and things to ensure the children continue to be known by the surname Alden-Mallory;
(b)That she consults each of the parents regarding any significant changes in the circumstances of the children, including, but not limited to, school or pre-school enrolments, involvement in religious instruction, involvement in extra-curricular activities such as regular sporting, dancing or musical activities, and other matters involving the long term welfare of the children.
That the children spend time with the mother as she and the paternal grandmother may agree.
That the children spend time with the father as follows:
(a)Up to and including July 2009 on a supervised basis at the Interrelate Children’s Contact Centre in Orange not less than once per fortnight for 2 hours;
(b)Thereafter and for a period of six months on an unsupervised basis from 10am until 2pm each alternate Saturday;
(c)Thereafter and until the child [L] turns 11 years of age each alternate weekend on an unsupervised basis from 10am until 4pm Saturday and from 10am until 4pm Sunday;
(d)Thereafter overnight each alternate weekend from 10am Saturday until 4pm Sunday, provided that the father has appropriate accommodation comprising not less than two bedrooms and containing all the usual facilities sufficient to allow the children to be properly accommodated overnight; and
(e)On Christmas Day each year commencing in 2009 from 2pm until 6pm.
That prior to any period of time where the children are to spend in excess of four hours with the father unsupervised the father must provide to the solicitor for the maternal grandmother a copy of a residential lease indicating that the father has his own accommodation and in the event that he fails to do so the periods of time shall continue for no more than four hours a fortnight until such time as he can provide such copy of a lease.
That each party is restrained from relocating the residence of the children a distance greater than 30 kilometres from Orange Post Office.
In order to give effect to the above orders for the children to spend time with the father other than at the Interrelate Contact Centre the maternal grandmother shall arrange for the delivery of the children to the father at the entrance to [omitted] Supermarket, Orange at the commencement of such periods of time, and the father is to return the children to the maternal grandmother at the same place at the conclusion of the periods of times unless and until the maternal grandmother and the father have agreed on alternative arrangements.
That each party notify the others forthwith of any medical emergency concerning either of the children.
That each of the parents, and maternal grandmother have authority, hereby given, to obtain such information regarding the children’s medical and schooling activities as they may reasonably request of any medical practitioner, dentist, or the Principal of any school attended by the children.
That each party maintain an address and telephone contact number notified to the others and each party advise the others within 48 hours of any change of residential address or telephone contact number occurring.
That the father be restrained from consuming any illegal substance or alcohol in the period 12 hours prior to and during any period of time when he has the care of the children pursuant to these orders.
That each party be restrained from denigrating the other or members of the other’s family to or in the presence of or hearing of the children and must ensure that no other person does so.
That within 28 days the mother, father and maternal grandmother, individually or collectively as they may agree, approach Family Support Orange and obtain such assistance as that service may be able to provide them.
IT IS NOTED that publication of this judgment under the pseudonym Mallory & Alden and Alden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 296 of 2007
| MR MALLORY |
Applicant
And
| MS A ALDEN |
First Respondent
| MS G ALDEN |
Second Respondent
And
| VIVIEN CARTY |
Independent Children’s Lawyer
And
| THE DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES |
Intervenor
REASONS FOR JUDGMENT
Introduction
[L] and [S] live with their maternal grandmother in Orange. Their mother and brother, [D] also live them. The court has been asked to decide what arrangements should be made for them to spend time with their father.
The father would like to spend time with the children on an unsupervised basis initially for 4 hours on a Saturday with that time being progressively increased to each alternate weekend and half school holidays.
[L] and [S] were independently represented in these proceedings by
Ms Carty solicitor. Ms Carty sought an order that would provide for the children to see their father for two hours a fortnight supervised for twelve months at the Interrelate Contact Centre in Orange followed by a graduated increase in unsupervised time. Ms Carty opposed the children spending any overnight time with the father until they are twelve years of age. She also sought an order providing for the maternal grandmother to have sole parental responsibility in consultation with the mother.
Both the mother and maternal grandmother supported the Independent Children’s Lawyer’s proposal in relation to the children’s time with the father.
The Director-General Department of Community Services intervened in these proceedings and generally supported the proposed orders of the Independent Children’s Lawyer except in relation to the parental responsibility order. The Director-General supported the father’s proposed order in that regard which provided for the maternal grandmother to have sole parental responsibility in consultation with both parents on a number of issues and that she ensure the children continue to be known by the surname Alden-Mallory. The Director-General whilst supportive of any supervised time being for twelve months did not oppose the period being limited to six months.
The Evidence
The applicant father relied on:
a)His Amended Initiating Application filed 16 May 2007;
b)A minute of order that was tendered during the proceedings;[1] and
c)His affidavit filed 22 August 2008.
[1] Exhibit F10
The first respondent mother relied on:
a)Her Response filed by leave in court on 30 September 2008;[2]
b)Her affidavits filed:
i)4 December 2007; and
ii)23 September 2008; and
c)An affidavit of the maternal grandmother filed 4 December 2007.
[2] The Response had previously been provided to the parties and indeed forwarded to the court on 19 November 2007 however for some unknown reason it was never formally filed.
The second respondent maternal grandmother relied on:
a)Her Response filed 18 January 2008;
b)Her affidavits filed:
i)18 January 2008; and
ii)28 August 2008.
The Director-General Department of Community Services relied on the affidavit of Ms H, a case work manager in Orange. This affidavit was filed on 1 September 2008.
A Chapter 15 Report was prepared by Associate Professor Carolyn Quadrio who is a consultant psychiatrist.
A number of documents were tendered throughout the proceedings.
I have had regard to this material and had an opportunity to observe the parties in the witness box and heard evidence via telephone link from Professor Quadrio.
Background
The father is 56 years of age and the mother is 28. The maternal grandmother is 45 years of age. They all live in Orange and no one is in paid employment. The maternal grandmother was a [occupation omitted] until giving up that employment at the end of 2007 to look after the children.
The mother and father commenced to live together in about May 2001 and they separated on 2 January 2007. [L] was born in 2003 and [S] was born in 2004. The mother has a history of mental health difficulties as a result of chronic schizophrenia and the father has a history of reliance on alcohol and illicit drugs. There are also a number of allegations that he has a history of family violence and sexual impropriety towards children.
The mother has two other children: 11 year old [D] who was born in 1997; and [H] who was born in 1999. [H] lives with her natural father and step-mother in the Hunter region.
The father has nine children to various mothers. His first child [C] was adopted out however the father met her in the late 1980s and has had sporadic contact with her since that time. He maintains contact with three of his adult children, [M], [H] and [N]. They are the brothers of [C]. He has no contact with [A] and [C] who are now aged about 19 and 17 nor does he have any contact with [J] who is about 13 years of age.
The father is not in a new relationship. Although the mother is dating another gentleman they have no plans at this stage to enter into a live in relationship. The maternal grandmother is not currently in any relationship.
Issues
At the beginning of these proceedings the father was seeking that the two children live with him. The mother also sought such an order.
I indicated to the parties that the evidence in support of the competing residence applications fell short of that which would normally be required for the court to properly consider such applications. For example the father did not have any accommodation available to him other than a room at a friend’s house. The father had met this friend at a pub in Orange around the middle of 2008 and was offered the room. This is not appropriate accommodation to house the children. The mother is receiving treatment for her mental health condition and is living with the maternal grandmother. This treatment is ongoing however there was no evidence from her treating professionals as to her capacity to parent in light of that treatment.
After I indicated my concern as to proceeding to hear competing residence applications as between the mother, the father and the maternal grandmother the parties entered into discussions and then indicated that all of them including the Independent Children’s Lawyer and the Director-General Department of Community Services would consent to an order for the children to live with the maternal grandmother. I am satisfied that that arrangement is in the best interests of the children and clearly at this stage in the lives of both parents the only realistic option available. I indicated that I would make such an order.
The parties all agreed that the time the mother should spend with the children should be determined by the maternal grandmother having regard to the mother’s state of health at the time she wishes to spend time with the children. I note that the mother is living with the maternal grandmother at this stage. Any formal order for her to spend time with the children is therefore artificial however this may not be the case in the future if the mother decides to live independently of the maternal grandmother and the children. Given the long standing mental health issues the mother has faced it is clear that her circumstances may change from time to time. The maternal grandmother appears to be in the best position to determine on a daily basis how the mother’s health is progressing. I am satisfied that she would be protective of the children in this regard and therefore find that it is in their best interests for the maternal grandmother to assess the mother’s health in the event that she wishes to spend time with them.
The issue of residence and the mother’s time with the children having been determined the court was required to consider whether the children should spend time with the father in a supervised or unsupervised arrangement and determine the extent of the time. In determining this issue the court was invited to consider if the children are at an unacceptable risk in the father’s care as a result of allegations that he has a propensity for violence and inappropriate sexual activity towards children.
The other issue requiring determination was the extent of parental responsibility.
Credit
The parties’ credit has been called into issue in this case in that all parties have either submitted or conceded that the evidence of the mother and father was unreliable either in whole or in part.
Mr Harper, for the Director-General, submitted that the father presented his evidence at times in a benign and befuddled bewilderment. He presented as having a poor memory. At other times he appeared to be deliberately withholding information and was deliberately deceptive. It was submitted that the court would have little confidence that his evidence was reliable. The mother’s evidence was also said to be unreliable because of her mental health issues. It was submitted that the mother gave her evidence in a forthright fashion but, as the mother herself acknowledged, she struggled with the recollection of events and that her perceptions of memory may have been clouded by her health.
The father submitted that the mother’s poor memory was a product of her ongoing mental health issues. Indeed all parties accepted this.
The mother is aware of her mental health condition and conceded that she has not been the best of historians when it comes to her evidence.
I am grateful for the mother’s insight in that regard. Although I found much of her evidence to be given in a confused state, I at no time formed the view she was deliberately lying. I am cautious however in accepting her evidence because her perceptions of the facts have been greatly influenced by the state of her health not only at the time of the alleged incidents but also in the context of this litigation.
The father invited the court to find that his memory problems were as a result of his past alcohol and drug misuse. Mr Boyd conceded that where the father’s evidence conflicted with that of the court expert or tendered documents the court would prefer the latter sources given his ‘patchy’ memory.
The mother’s solicitor, Mr Hill submitted that the father’s evidence was not credible and should be rejected. He submitted that parts of the evidence was deliberately minimised or meant to deceive the court and others were a case of him having a bad memory though a combination of age, alcohol and cannabis.
The maternal grandmother submitted through her counsel Mr Day that the father’s evidence was unreliable because of the “dimming fog” of alcohol and cannabis use. Mr Day suggested that his memory loss was convenient at times but that he had a good memory of exculpatory matters. It was submitted that he minimised a number of incidents.
I accept that the father’s evidence was less than satisfactory primarily because of his history of alcohol and cannabis misuse. However I was also left with the impression that at times he did not want to concede points that may lead to a less than positive finding. One example was when he initially denied having certain criminal convictions but when prompted in relation to an incident involving a gun and a traffic incident in Darwin he corrected his evidence.
Given both parents had difficulties in the giving of their evidence it is difficult to determine the truth where their evidence differs. For this reason I have placed a greater weight on the documentary evidence. However I am not prepared to blindly accept a written record on the face of it. For example the file from the Department of Families SA[3] records a number of allegations and notifications involving the family not all of which were fully investigated.
[3] Exhibits ICL1, DOCS2 and F8
Legal Principles
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[4] That is the overriding principle.
[4] Section 60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[5]
[5] Section 60B lists the objects and principles for Pt VII.
In determining what is in a child’s best interests I must consider the matters set out in s.60CC.
When making a parenting order the court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for the child.[6] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the children’s best interests for it to apply.[7]
[6] Section 61DA
[7] Section 61DA(2) & (4)
In the event that the Court orders the parties to have equal shared parental responsibility for the child the Court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. If the court finds that is not in the children’s best interests or reasonably practicable then the court must consider the children spending substantial and significant time with the parents.
Presumption of Equal Shared Parental Responsibility
I am satisfied that the presumption of equal shared parental responsibility has been rebutted. For reasons that I will expand upon later in this judgment I find that the father has perpetrated family violence. The mother’s mental health is another reason why I would not apply the presumption. It is necessary however to consider the appropriate order for parental responsibility.
The mother’s preferred outcome is for joint parental responsibility between the maternal grandmother and the mother although she would be satisfied if the court was so minded to order that the maternal grandmother have sole parental responsibility in consultation with the mother. She is opposed to the consultation being extended to the father as she believes such a three pronged arrangement would be impracticable and unsustainable. In the alternative she submitted that it would be preferable for the maternal grandmother to have sole parental responsibility with no consultation to either the father or the mother.
The Independent Children’s Lawyer proposed that the parental responsibility should lie with the maternal grandmother in consultation with the mother. The maternal grandmother supports this proposal however in her evidence said that if the court was minded to order her to consult with the father she would be able to do so. In the written submissions of her counsel she maintained her preferred option but confirmed an ability and willingness to consult the father.
Both the father and Director-General sought orders for the consultation to include the father.
I am satisfied that because of the inability of the father to communicate effectively with the maternal grandmother and the mother it is unlikely that all three parties would reach agreement when making decisions about the children. The father however has played a significant roll in the lives of these children and I am therefore satisfied that he should be consulted in relation to any decisions. The difficulty with him having to agree along with the mother and maternal grandmother is that the need to make a decision maybe frustrated because of the inability to communicate.
The mother whilst at the moment appearing to be compliant with her medication and being in a position to make decisions, may not always be in that position by the very nature of her mental health condition.
I find therefore that it is in the best interests of these children that the parental responsibility fall to the maternal grandmother but that she consult both the mother and father before making any decision. The order proposed by the father[8] and supported by the Director-General is an appropriate one to provide for this.
[8] Exhibit F10
This order included a requirement that the maternal grandmother do all things necessary to ensure the children are known by the surname Alden-Mallory. I received no submissions opposing this and will include it also in the orders I make.
Consideration of Equal Time or Substantial and Significant Time
I have not applied the presumption of equal shared parental responsibility and therefore I am not required to consider the factors set out in s.65DAA. I will however consider the extent of time the children should spend with their father by assessing the various factors set out in s.60CC.
The primary considerations: s.60CC(2)
The benefit to the child of having a meaningful relationship with both of the child’s parents
These children would benefit by having an ongoing relationship with both their mother and their father with the support of the maternal grandmother.
I am satisfied that they have a positive relationship with their father noting the observations of Associate Professor Quadrio[9], the notes from the contact centre[10] and the evidence of the maternal grandmother. The maternal grandmother says that the children’s desire to see their father may have been influenced by him providing them with gifts. The contact centre notes also refer to this issue. Obviously children enjoy receiving gifts and that is part of a natural relationship between parent and child. An important aspect however is for them to learn that they will not always receive gifts on each and every visit otherwise their relationship with that parent will not mature. The father appeared to understand this and has amended his approach.
[9] Page 30 of report
[10] Exhibit F9
The time the father has spent with the children over the last twelve months has been supervised and the Court has been asked to continue that supervision for between another six to twelve months. One of the issues in determining ongoing supervision of any time spent between children and a parent is whether or not the relationship that would be developed and maintained during those periods of time would develop into a meaningful one. As children get older they may very well question why it is necessary to always have some other person around when they are with their parent. This may lead to them questioning their relationship with that parent and indeed it may compromise the ongoing future relationship between them.
The time available to the father from Interrelate is quite limited and the venue which no doubt is appropriate but has its physical limitations must also compromise the ability of the father and children to freely develop their relationships. There appears to be no other person available to supervise the time.
Mr Boyd drew the court’s attention to the evidence of Professor Quadrio in relation to the affects of long term supervision. The Professor said:
“If there is no risk of harm then a lot more natural interaction would be preferable. Supervision is not ideal and the children could develop a skewed relationship.”
I am satisfied that supervision in itself is not ideal and may have long term detrimental effects on the children’s relationship with their father. However this concern needs to be weighed against any risk to the children. I will consider this issue in more detail when I consider the issue of the need to protect the children from harm.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
There have been a number of serious allegations made against the father in relation to family violence and sexual abuse of children. It is imperative that these children be free from physical or psychological harm. The court has been asked to consider whether there is an unacceptable risk of harm to the children if they are to have unsupervised time with their father and if so at what stage that risk is mitigated such that supervision would no longer be necessary.
The mother’s evidence was that she had been subjected to years of physical violence from the father and that he had also been violent to the children and [D].
On 2 January 2007, whilst the mother and father were living in a caravan in [B] an incident occurred whereby [D] was injured at the hands of the father. He was found guilty upon his own plea to assault occasioning actual bodily harm of [D] and was placed on a good behaviour bond.
The father said that he heard [D] swear at the mother and in response he hit him with an open hand. The father said the hit was at a much greater strength than he had anticipated. The strength of the slap was so bad that it left an imprint in the face of the child who was 8 years of age at the time.
The mother’s evidence was that the father had conducted a sustained attack on the child to various parts of his head and body. When she was questioned about this and as to why she had not intervened to protect her son her response was to the effect that she had been in the caravan and hadn’t seen it all. I have already referred to the difficulties I have in accepting the mother’s evidence.
Mr Boyd submitted that the court should reject the mother’s version of this event on the basis that the outcome of his sentencing would have been inconceivable if her version had been corroborated.
Given the father pleaded guilty the court that dealt with his sentence may not have been in a position to determine any issue of corroboration. I therefore can not accept the submission that the father would have been given a different sentence if the mother’s version had been accepted. Having said that I am satisfied from the father’s own version of events the assault was serious and unjustified.
The Court was invited to find that the father’s evidence amounted to a minimisation of responsibility by blaming [D] for the assault. I accept this submission however I do not accept the Independent Children’s Lawyer’s submission that the father’s assault on [D] was:
“… a violent and unprovoked physical attack on a child for which the father shows little or no remorse.”
Whilst it clearly was a violent and unprovoked physical attack the father clearly regrets the incident. It remains disappointing however that he minimises the seriousness of it.
The evidence of Professor Quadrio, the mother and the maternal grandmother suggests that [D] remains very fearful of the father. This is unsurprising in the circumstances. The father clearly has no insight in to his behaviour as he wanted [D] to continue to be involved in his life by having a notation made along with these orders that would have provided for [D] to spend some time with him in the future. Whilst one can understand that a person who has played a significant parenting role to a child may wish to continue to have a relationship with him, in the circumstances of the seriousness of this assault it is quiet surprising that he would risk the emotional wellbeing of [D] given the child’s fears of him.
It appears from Professor Quadrio’s assessment of [D] that he may have suffered significant trauma. The brief provided to Professor Quadrio was not to assess [D]’s future parenting arrangements and therefore she did not explore whether the issues that [D] is currently experiencing and its associated stresses are as a result of that particular violence. However it appears to be clear that [D] was very much concerned about the presence of the father at the interview process and that this is consistent with the evidence of the mother and the maternal grandmother as to his reactions at home. [D] appears to have taken on a protective role in relation to his two younger siblings.
It was further disappointing that in relation to the issue of his anger management the father indicated that he had done a course “some years ago”. He said that he would do another course if that is what it took in order to make him “a better parent” however he went on to say that he didn’t see any real need to do the course.
The records of the Department of Families South Australia[11] show another disturbing incident that was said to have occurred on
1 November 2006. The neighbours of the father and mother reported to police that during the day the father and mother, who had been drinking, had a heated argument in the backyard. They alleged the father went up behind [L] and said to her “get inside you fucking little cunt” and then kicked her so hard that she flew into the air landing on her back. They said that he then picked up a chair and threw it towards [D] but did not hit him. After the father and mother went inside the notifiers alleged they heard the mother say “put the knife down”. They did not see this however. The notes record other allegations of the father hitting [D] and pushing the mother’s head up against a cupboard in front of the children. When the police investigated they found a knife in one of the children’s bags.
[11] Exhibit ICL 1
The father in his evidence recalled that he and the mother had been drinking that day and that he kicked a chair not [L]. He said that he would never have done that to his child but if he had he must have been so drunk as he had no memory of it.
There were a number of other notifications to the Department prior to this one. Many of them came from the mother accusing the father of having sexually abused the girls. These allegations were never substantiated. There is also a note on the file that the mother had made a similar accusation against the father of her other daughter [H]. The mother had been admitted to hospital for her mental health condition on a number of occasions and the children had been solely cared for by the father.
Not long after the November 2006 notification and investigation by Families SA the parents moved from South Australia.
The father has faced a number of criminal charges[12] one of which involved his former partner Ms P. In May 1996 he was convicted of assaulting her and breaching an apprehended violence order. The father in his evidence said that all he did was:
[12] Exhibit F1
“through a bit of beer on her”
It was submitted on behalf of the Independent Children’s Lawyer, the maternal grandmother and the mother that in this evidence he was minimising the event. The father attended the anger management course after being sentenced for this offence.
The Independent Children’s Lawyer submitted it is more likely than not that the mother’s history of the domestic violence between the parties during the course of the relationship was substantially accurate and Mr Hill submitted that her evidence in relation to the father’s violence was supported by the corroborative evidence.
He submitted that the court would accept her evidence that she had been in a domestically violent relationship with the father and that the children have been exposed to that violence because of the documented evidence as to her dislocated shoulder, the physical injuries to [D], the complaint to Families SA by the next door neighbours and [D]’s hyper vigilance and fear of the father. Further to these incidents was the other history recorded in the police file as to the father’s domestic violence on others. Mr Hill submitted:
“All of these factors lend credibility to the mother’s version of events and although her evidence needs to be viewed through the blurred lens of her mental illness it is still possible to get the picture.”
I accept the corroborative evidence lends credence to the mother’s allegations however I am unable to determine with any accuracy the extent of the violence in this family as the mother’s mental illness has certainly clouded her memory of events as well as her perceptions of them. Notwithstanding that reservation I am satisfied that the father has been violent to [D] and has likely been violent to his previous partners including the mother. I am also concerned that he may have been physically violent and/or emotionally abusive to [L] whilst intoxicated.
On that point I note the mother’s evidence that the father was not violent when he was not drinking.
Further to the issue of violence there is a suggestion that the children may be at an unacceptable risk of sexual abuse if they were to spend unsupervised time with the father. The father was questioned about an incident in 1990 that led to proceedings in the Maitland Local Court concerning a child by the name of [J]. [J] was five or six years of age at the time. It was put to the father that he had faced charges of a sexual nature. This was initially denied by him but he conceded that he had been spoken to about an incident whereby it was suggested he had fondled the child [J]. He said that he was given some paper work at court. It took some time under cross examination before he ultimately conceded that he was ordered not to go near the mother of [J].
The father’s evidence in this regard was evasive and he presented as deliberately seeking to avoid answering the questions. Notwithstanding this, there is no evidence of him being convicted of any sexual assault on a child.
The father denied any knowledge of another allegation involving him exposing two girls to pornography and masturbating in front of them. After extensive questioning he remembered there was a dispute with some neighbours threatening to take matters into their own hands and police were called.
Mr Hill submitted that there was an unacceptable risk to the children if the father was to have unsupervised time. This unacceptable risk related to the risk of sexual abuse and the risk of physical abuse. Mr Hill submitted that the best way to protect the children from these risks was to extend the period of supervision for as long as possible and postpone the onset of overnight time with the children until they are of an age when they can protect themselves to some extent. Somewhat confusingly Mr Hill argued that this is a case where the court would be justified in refusing contact altogether such is the strength of the evidence of risk of harm. This submission is an important one but does not coincide with his instructions. If the mother’s view is that there should be no time spent between the children and the father she should have sought orders to that effect. No party brought to the court such an application nor was the matter conducted in that way.
Mr Day referred to Professor Quadrio’s concerns about the stability of the father, his involvement in family violence and his alcohol and drug use. She described him as eccentric. She was further concerned as to his attitude towards females in general.
Mr Day submitted that the court should find that there was general family violence perpetrated by the father and specific assaults on one of the girls at Mount Gambia and on [D] at [B] and accordingly there is sufficient evidence to conclude a risk of physical harm to the children when they are with the father and that that risk is unacceptable.
Mr Day submitted that the court can minimise the risk to the children by supervision or restriction of time (thereby reducing opportunity) or both.
Mr Day went on to submit that the fears of the mother and a lesser extent the grandmother as the residential “parent” are also relevant insofar as despite their best efforts those fears will remain for sometime into the future and the children will be aware of those fears.
A reduction of those fears by supervision and short unsupervised times will benefit the relationship of the children with the mother, the grandmother and in so doing also with the father.
In support of that submission Mr Day referred the court to the decision of In the Marriage of A.[13] In that case the Full Court held that in cases such as this the primary consideration for a trial judge is to decide whether there is an unacceptable risk of harm to children to spend time with a parent or to have unsupervised time with the parent and that a secondary consideration may be the other parent’s belief as to the risk to the children. The question in considering this secondary consideration is whether that belief is genuinely held. It need not be objectively or reasonably based. Further the belief must affect the parent’s capacity to parent such that it would not be in the best interests of the children for them to spend time with the other parent or that the time should be supervised in order to allay the fears of the primary carer.
[13] (1998) 22 Fam LR 756
I do not doubt the genuineness of the beliefs held by the mother and maternal grandmother that without supervision the children will be at risk of harm from the father. The incident involving [D] alone would cause those beliefs to be formed. There is however no evidence sufficient to make a finding that the ability of the maternal grandmother to parent the children would be compromised by her knowledge that the children would be having unsupervised time with the father. Similarly there is no evidence that the mother’s relationship with the children would suffer a negative impact from such knowledge.
Mr Day went on to submit that there needed to be a transition to unsupervised time but that that should be lengthy; that the father should demonstrate to the grandmother that he had suitable accommodation when unsupervised time starts; that the unsupervised time should be short in terms of time in order to reduce the potential risks; that any overnight time should commence when the children are old enough to report any misconduct (and on that point Professor Quadrio opined about 11 years of age); and that the proposed orders of the Independent Children’s Lawyer best satisfied the matters arising out of the evidence.
The Director-General submitted that Professor Quadrio maintained significant concerns about the father and concluded that he constituted “a risk”. The level and nature of this risk was not clearly defined. Professor Quadrio did not support over night time with the children in the immediate future saying that developmentally children would not be in a position to be appropriately self protective until they were about 11 years of age.
Professor Quadrio indicated in her evidence that she would be supportive of unsupervised day time periods of time but not overnight time because periods of time overnight involved longer sustained periods of contact. In her view the longer periods whether they would be day or night can create a greater risk for the father experiencing frustration which may be unleashed in inappropriate behaviour towards the children.
Mr Harper submitted that the level of risk to these children from spending unsupervised time with the father is “not unacceptable”. In support of that submission he argued that whilst significant concerns about the father remain the evidence does not reach the level necessary to find that there would be an unacceptable risk to the welfare of the children in spending fairly limited periods of unsupervised time with him. He submitted that most of the allegations come from the mother or could be explained as having originated from her; the children have a good relationship with their father; they would benefit from the continuation of their relationship with him in a natural setting; and there are appreciable disadvantages for the children in continuing long term supervision including stifling of the development of the natural relationship between them and their father.
Mr Harper argued that the orders proposed by the Independent Children’s Lawyer strike the balance between the risks of continuing supervision and the risks of removing it altogether. It was submitted that twelve months supervision provides protection for the children from exposure to further allegations and investigations. There remains a risk that the mother’s mental health will again deteriorate and if so there is a real risk that she will make an allegation that the children have been abused by the father. During the last twelve months the children have experienced a period of stability which has been unprecedented in their short lives. It was submitted that they deserve an opportunity to capitalise upon that current stability without further allegations and investigations.
The submissions received appear in one sense to be contradictory in that the Director-General would not be opposed to a period of supervision shorter than twelve months however I understand the submission to suggest that the a twelve month period of supervision may very well assist the continuation of the children’s stability and that if the court was of the view that was too long that the period of time should be at least until the middle of 2009.
The Independent Children’s Lawyer submitted that there were significant risks for these children, who are still very young and vulnerable if they were to immediately have unsupervised time with their father.
Mr Boyd argued that there was nothing in the evidence which would lead the court to conclude that there is a situation of “unacceptable risk of harm” to the children such as would require the court to maintain an artificial and restrictive regime of time for the children with their father. Given this the court would not be predisposed to make an order for supervision or restrict the time. He invited the court to find that the father is free from alcohol problems and therefore is less prone to incidents of violence and/or anger and that this is consistent with his other evidence that was uncontradicted by any document presented to the court or the evidence of the expert.
I am not satisfied that the evidence is sufficient to establish that these children would be at an unacceptable risk of harm if they were to have unsupervised time with the father. Clearly the father’s history of family violence is of concern and I am satisfied that there is a risk that at times he will find the care of the children frustrating. The level of this risk can be mitigated by slowly increasing the level of time the children spend with the father and by restraining him from consuming alcohol and illicit substances prior to and during the times the children spend with him.
I am also not satisfied that there is any evidence to find that the children are at risk of sexual abuse in the care of the father. The High Court in M v M[14] held that the court is not under any duty to determine in a definitive way any allegation of sexual abuse but rather consider whether there is an unacceptable risk to a child of such abuse if the child is to spend time with a parent. Although in this case the mother has previously made allegations that the father has sexually abused the children they have never been substantiated. There appears to be suggestions that he has been previously spoken to by police in relation to complaints of a sexual nature involving children but there was no evidence to support any finding that he has in any way been sexually inappropriate towards children.
[14] (1988) 166 CLR 69; (1988) 12 Fam LR 606
Professor Quadrio gave evidence that supervision would be preferable because the past history of the father, and in particular the incident with [D], caused her to be concerned for the welfare of the children. She said that her concerns would be somewhat allayed if over a twelve month period the father had settled in Orange and found his own accommodation and avoided dealings with the police. The children would also be another twelve months older.
The mother also had a fear that the father would abscond with the children but I saw no evidence to suggest that he would do so.
When I weigh all of the concerns I am satisfied that the children would benefit from a further six month period of supervision not necessarily to protect them but to prepare all the adults for the transition. I did not find that the maternal grandmother’s parenting capacity would be compromised by the knowledge that the children would be having unsupervised time with the father but I see some benefit in her having some time to get used to the idea. The mother also would benefit by this.
By July 2009 the father will have been in Orange for a year. I am satisfied that that is sufficient time for the father to establish his stability in that town.
The additional considerations: s.60CC (3)
In determining this matter the major consideration has been the need to protect the children from harm which I have covered above. I have however also taken into account all of the additional considerations.
I will set out below the most relevant ones considered.
Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
The children have expressed a wish to see their father. I am satisfied that this is a sincerely held wish by them. [L] expressed a wish to Professor Quadrio to have sleep overs with the father. I note that [S] said that she did not like her father although the professor noted this occurred straight after the child had been talking to the mother and her provision of that information appeared to be rehearsed and therefore influenced by the mother.
These children are still so very young that the court cannot place any significant weight on their wishes certainly not in any determinative way. It however provides some insight as to the children’s relationship with their father and I am satisfied that they wish to maintain that relationship even at their age.
The nature of the relationship of the child with each of the child’s parents
The children appear to have a positive relationship with all of the parties.
They were receiving a number of presents from the father at the contact centre. The grandmother was concerned that their relationship with him was being influenced by this and wondered if he was attempting to bribe a relationship with the children. Indeed when the children saw the father at Professor Quadrio’s rooms one of them asked if he had any presents. It is difficult to determine if their desire to see their father is based on their natural inclination to want presents. I am not satisfied that they have been bought however I note with the same concern that the maternal grandmother has that the children’s relationship with their father needs to develop free of any influence of continual provision of presents. It is appropriate and indeed positive for the children to receive presents from the father from time to time however it should not occur on each and every occasion.
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
I have some concerns as to the willingness of the maternal grandmother and the mother to promote a close and continuing relationship between the children and the father. They clearly have a view that he is not an appropriate person to see the children. No doubt this view has been formed by the issue of violence. There is some doubt that as to whether the maternal grandmother has influenced the staff at Interrelate to cancel times between the children and the father and or to make his time more restrictive. Notwithstanding this I am satisfied that the maternal grandmother will comply with any orders for the children to spend time with the father.
The father has shown a significant commitment to these children which I will discuss below and I am satisfied that he wishes to continue that relationship.
The capacity of each of the child’s parents and 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
The court has to consider whether the father is able to provide for the children’s emotional and intellectual needs when they are spending time with him. Clearly he does not like the maternal grandmother. If he expresses the negative views about the maternal grandmother that he expressed to Professor Quadrio to the children then he may very well undermine their placement and relationship with the maternal grandmother.
Apart from this issue and the issue of violence I am satisfied that the father would be able to provide the necessary day to day care the children need. There have been occasions when the father has cared for the children whilst the mother has spent time in hospital. The maternal grandmother was critical of the state of the children when they came into her care but I am not in a position to find that the father is not able to appropriately care for the children.
Currently the father is living as a boarder in a friend’s home. He has one room there. This is clearly not appropriate for his care of the children when they start spending longer periods of time with him. Once the father starts spending more than four hours with the children it would be appropriate for him to have his own accommodation but until the children are spending periods of time overnight with him it would not be necessary for him to have a separate bedroom for them.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
Prior to the father moving to Orange in June 2008 he would travel by train from his home near Maitland to Orange in order to spend a couple of hours of supervised time before getting on a train to return to Maitland. The extent of this travel was enormous involving more than 24 hours of travel and a number of changes of train. This regular attendance clearly showed a commitment to the children. I am satisfied that he wishes to keep these children in his life. He has had a number of children to different partners and has at times experienced severing of his relationship with them. I am satisfied that he wishes to maintain the relationship he has with [L] and [S].
Mr Hill argued that the father’s extensive travel is commendable but that it should not be given a great deal if weight as it is merely an indication of a father’s desire to regain contact. It was suggested that this does not fit into the legislative framework. With respect this submission is wrong. The court must consider the commitment that a parent has towards parenting children and that would include the lengths they are prepared to go to in order to fulfil their commitment to them. Evidence of such commitment is evidence as to their attitude to the children and how they see their responsibilities as a parent.
Mr Day also submitted that whilst the father undertaking the extensive train travel to and from Orange is commendable it should not be seen as somehow absolving his past misconduct to the children and their mother. I accept this submission. The father’s actions in travelling to Orange are commendable but they are only one factor to be taken into account when weighing up all of the matters before the court.
The Independent Children’s Lawyer is critical of the father in his evidence in relation to his many children to different partners.
Mr Graham argued that his evidence in this regard was not convincing as he attributes his lack of action as being financial though he concedes that he knows that he could obtain a location order very simply through the court. His evidence was not as simple as that. I am satisfied that the father is of very modest means being on a disability support pension and also through the circumstances of his life is not knowledgeable of all of the processes available to him. I am further satisfied that he has had difficulties in his relationships with former partners and his children and that any decision in relation to resuming a relationship would be fought with difficulties. Given that the father has focussed very well on trying to maintain a relationship with these two children I am satisfied that he does not wish to see a repeat of the breakdown that he had experienced with his other children.
Professor Quadrio concluded that history is a guide to the future and it maybe that the father is now motivated to ensure that he has an ongoing relationship with the children however the court must be concerned that the father may relapse into drug and alcohol misuse again. I am satisfied that the father has made attempts to reduce his alcohol intake. Time will tell if he can sustain this however I am satisfied that he is motivated to maintaining his relationship with the children which should assist him to keep his alcohol consumption under control.
Although he is not paying significant child support, he is on a disability support pension and I am satisfied that he is paying the appropriate amount of child support in the circumstances.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person
The Court must have regard to any family violence order and ensure that any order that is made does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interests being treated as paramount.[15]
[15] Section 60CG
There is a current Apprehended Violence Order in place that was obtained within a week or two of the father arriving in Orange. I am satisfied that the maternal grandmother and the mother are concerned for the safety of themselves and the children. Given [D]’s reaction to the father being present I am also satisfied that he is fearful of the father. I am not satisfied that the two subject children are fearful of him given the observations of their time with him at the contact centre and when interviewed by Professor Quadrio.
The history of family violence is a very important consideration which I have already covered above.
Discussion
The Director-General would like each of the parties to approach Family Support Orange in order to receive assistance. I will make an order to that effect as I am satisfied that the organisation will be of assistance to all of the parties and benefit the children. The parties were agreeable to such an order.
For the reasons I have already set out I propose to make orders that will provide for about six months more supervision followed by a gradual increase in the periods of unsupervised time the children spend with the father. The first period of unsupervised time, which will last six months, will be for four hours each alternate Saturday. This will assist the children to get used to spending unsupervised time with the father and for the father to get used to having the children with him again outside the artificial constraints of the contact centre.
After that period the children should be able to spend longer periods of time with the father. I was persuaded that overnight time should not commence until the eldest child [L] turns eleven. Professor Quadrio gave evidence that children remain vulnerable until around that age. That is still five and a half years away. Whilst I have found there is not an unacceptable risk of the children spending time with the father without supervision there still remains a risk particularly if the father was to be frustrated in his care of the children. For this reason I have decided that until [L] turns eleven the children should spend six hours on a Saturday followed the next day by another six hours. By this stage the father would need to have appropriate accommodation in the event that he wanted to take the children home during those six hours although it would not necessarily be such that he would have to have a separate bedroom for them as the orders that I will make will not provide for overnight time until [L] turns eleven.
Although invited to order school holiday time for the children with the father I have elected not to do so. It is too far into the future to determine if the children would be comfortable with such lengthy periods of time away from their grandmother. If all progresses well they should be able to do so and the father, mother and maternal grandmother may be able to reach agreement about that. By that stage the mother may no longer be living with the grandmother. If that is the case there would need to be appropriate periods of time for the children to spend with the mother during their school holidays subject of course to the mother’s circumstances at the time.
The father sought a notation to the effect that he would welcome [D] spending time with him when the other children are with him. The grandmother opposed this notation arguing that as there was no application before the court involving him the court should not make any notation. It was submitted that the father would have had standing as a significant adult in that child’s life to bring an application and he chose not to. Given the level of fear observed by Professor Quadrio I am of the view that it would not be appropriate to make any notation in relation to [D].
For these reasons I make the orders at the beginning of this judgment.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Associate: Helen Drysdale
Date: 27 January 2009
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