Martin and Ison
[2010] FMCAfam 359
•27 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARTIN & ISON | [2010] FMCAfam 359 |
| FAMILY LAW – Children – where father not known to child – father’s conduct toward mother – mother’s claim of fear for her own safety and that of the child unsubstantiated on the evidence – benefit to the child of spending time with biological father – time to be supervised at contact centre – mother to have sole parental responsibility. |
| Family Law Act 1975, ss.60B, 60CA, 60CC |
| McCall & Clark [2009] FamCAFC 92 G & C [2006] FamCA 994 Mazorski & Albright [2007] FamCA 520 Sedgley and Sedgley (1995) FLC ¶92-623 Irvine and Irvine (1995) FLC ¶92-624 Re Andrew (1996) FLC ¶92-692 |
| Applicant: | MR MARTIN |
| Respondent: | MS ISON |
| File Number: | MLC 3846 of 2009 |
| Judgment of: | McGuire FM |
| Hearing dates: | 3, 4 & 5 February 2010 |
| Date of Last Submission: | 5 February 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 27 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carter |
| Solicitors for the Applicant: | Dwyer Robinson Pty Ltd |
| Counsel for the Respondent: | Mr O'Connell |
| Solicitors for the Respondent: | Samantha Ward Pty |
ORDERS
That the mother have sole parental responsibility for the child [X] born [in] 2005 (“[X]”), and shall forthwith inform the father and keep him informed as to decisions she makes in the exercise of this responsibility.
That [X] live with the mother.
That [X] spend time with the father on a supervised basis as follows:
(a)for a minimum of two (2) hours on three occasions one month apart, in August, September and October in 2010;
(b)for a minimum of two (2) hours on three further occasions, such occasions occurring in December 2010, February and April 2011; and
(c)for a minimum of two (2) hours in August and December 2011, April and August 2012.
That [X] spend time with the father, unsupervised, as follows:
(a)from 10.00 am Saturday to 5.00 pm Sunday on four weekends during 2013, with the father to provide the mother with no less than four (4) weeks’ notice of his nominated weekend, together with details of the address at which overnight time will occur. Changeovers shall occur at the McDonald’s, [address omitted] in the State of Queensland, unless otherwise agreed;
(b)from 2014, for up to one week in each of the gazetted Queensland school holidays, at times agreed and failing agreement, from 10.00 am on the first Saturday of each school holiday period to 10.00 am on the second Saturday, with the father to provide to the mother details of the address at which overnight time will occur:
(i)such time to be spent in Queensland in 2014, with changeovers to occur at the McDonald’s, [address omitted] in the State of Queensland, unless otherwise agreed;
(ii)such time to be spent in Victoria or Queensland from 2015 and thereafter, with the father to nominate where the time will occur. In the event time is to occur in Victoria, he shall be wholly responsible for the costs of the child’s travel between the Gold Coast and Victoria;
(c)At such other or further times as may be agreed between the parties.
That time pursuant to paragraph (3) herein shall occur at the Gold Coast Children’s Contact Service, unless otherwise agreed between the parties in writing, and shall be supervised by that facility.
That within 14 days of the date of these orders each party do all such things and sign all documents, and arrange all interviews necessary to utilise the Gold Coast Children’s Contact Service for the purposes of complying with these orders and comply with all reasonable requests and directions of that service as to orientation and attendance.
That following the first time period for [X] with the father at the Gold Coast Children’s Contact Service, the father be at liberty to send [X] age-appropriate cards, letters and/or gifts at his birthday and Christmas and that the mother provide these items to [X] informing him that they have come from their father but that the father provides such items only via the mother and for these purposes the mother provide the father with an address (not necessarily her own residential address) for him to forward these items.
That the mother be restrained from relocating [X] from south-eastern Queensland without the express written consent of the father or an order of the Court.
That the mother and father each keep the other informed of any major illness or accident suffered by [X] when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by [X].
That the mother authorise the principal of each kindergarten/day-care facility/school attended by [X] from time to time to be sent to the father:
(a)a photocopy of each report concerning the child;
(b)a photocopy of all notices concerning the child;
(c)an order form for each photograph of the child.
That the father and mother be hereby restrained from denigrating the other, or permitting any person in their presence to denigrate the other, to or in the presence or hearing of [X].
That the mother and father attend as soon as practicable an appropriate post-separation parenting program or other appropriate course at Relationships Australia, or a parenting program recommended by them and provide an appropriate certificate of completion of the said program to the solicitors for the other party.
That the mother continue to attend upon Ms M, psychologist, or her nominee, for ongoing counselling and/or therapy, and comply with all reasonable directions of the said psychologist, until she is assessed by the psychologist as no longer requiring assistance.
THE COURT NOTES
(A)That pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Martin & Ison is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3846 of 2009
| MR MARTIN |
Applicant
And
| MS ISON |
Respondent
REASONS FOR JUDGMENT
Application and proposals
The father seeks limited parenting orders in respect of one child [X] born [in] 2005 (aged 4 years). The orders he seeks are in summary:
a)Periods of two hours supervised time with [X] commencing August 2010 and continuing to August 2012 such time to take place at a contact centre in Queensland and initially on a monthly basis but later on a two-monthly and three-monthly basis.
b)Weekend time in Queensland unsupervised and on four occasions during 2013.
c)School holiday time from 2014 to take place in Victoria from 2015.
d)Communication by letter and gifts.
e)Information as to the child’s schooling and medical matters.
f)A mutual and general order restraining each party from denigrating the other to or in the presence of the child.
g)An order that both parties attend a post-separation parenting course and that the mother continue therapy with her psychologist.
The mother proposes that there be no orders for any form of time
or communication between the child and the father.
Background
The father is 48 years of age. He lives in [W], Victoria. He is a disability pensioner. He is not currently in a relationship. He has a child, [Y], from a previous relationship and with whom he has no contact. Prior to meeting the respondent, the father was in a relationship with a woman by the name of Ms L. She has a daughter, [C], who is now about 12 years of age. The father claims to have had a close and bonded relationship with [C]. He now has no ongoing relationship with that child.
The mother is 35 years of age. She is a university student studying [omitted]. She lives in Queensland with [X] and her five-month-old son, [Z]. Ms Ison shares accommodation with her friend, Mr M. Mr M is [Z]’s father. The mother and Mr M, however, claim that their relationship is neither an intimate one nor a de facto relationship. They claim that they are financially independent and live together for mutual support. Both the mother and Mr M are originally from the general [W] area. They relocated to Queensland some years ago. The respondent and Mr M apparently left the [W] area in about September 2006 when [X] would have been 10 months old.
Mr M is registered as [X]’s father on his birth certificate. However, a paternity testing procedure initiated by the father in these proceedings has shown that Mr Martin is [X]’s biological parent.
Mr Martin has been diagnosed with Multiple Sclerosis. The evidence, and my observations of him in the witness box, do not suggest however that his condition is yet debilitating. The mother has been diagnosed with depression and was previously diagnosed when she sadly lost a child, [A], in about 2004. [A] was born prematurely, at about 21 weeks.
Although this application was commenced in May 2009, the evidence is that the father sought legal advice and in order to locate [X] and the mother some time earlier.
The parties dispute as to whether they were ever in fact in
a relationship. The father says they were and the mother says not although she concedes they did at times share accommodation.
The issues
The father specifically does not seek any ongoing “parenting” role with [X]. He concedes parental responsibility to the mother. He acknowledges the role of Mr M in the mother’s household and with [X]’s care. When asked in the witness box as to the motivation of his application, he replied:
I just want to know [X]. I want to know how he’s going at school. I want to know what he looks like. He has a right to know his father. Eventually I would like to spend time with him and be able to take him fishing and the like.
The issue for the father is that [X] will benefit in his self-identity in knowing his father.
The mother argues that there is no net benefit for [X] in having any form of relationship with the father particularly when balanced against the potential costs to [X]. She says that [X] is in danger physically and emotionally from the father. She says that Mr Martin is historically a violent person. Further, she says that her own parenting capacity will be compromised by her fear and anxiety for [X] if there is to be any form of relationship. The extension of her argument is that she fears for her own safety in that she argues that the application is not a bona fide one in that Mr Martin simply wishes to locate her and harass her and Mr M.
In summary, therefore, the issues for the Court’s consideration and determination are:
·Whether the father is a violent person and, if so, whether [X] and the mother are in danger from him.
·Whether the mother’s “fears” of the father are genuine and rationally based.
·The benefits and detriments to [X] of a relationship of any type with the father and also with reference to the initial very limited time that Mr Martin seeks with the child.
·What, if any, effect there will be on the mother’s parenting capacity of [X] having a relationship with the father.
·Issues of credit generally between the parties and the witness permeate this dispute.
·If orders are to be made then should they be final or interim orders.
Evidence
Mr Martin relied on his two affidavits filed 5 May 2009 and
25 January 2010. The mother also swore two affidavits filed 21 July 2009 and 29 January 2010. The mother adduced evidence from Mr M in an affidavit filed 29 January 2010. On the day of the hearing the mother’s counsel tendered into evidence by consent a recent report from Ms Ison’s therapeutic psychologist, Ms M. Ms M gave evidence by telephone updating her report of 18 January 2010. Both parties,
Mr M and Ms M were cross-examined. The Court had the benefit of both parties being represented by competent counsel who conducted appropriate and incisive cross-examination on the evidence, much of which was delicate in nature.
The Court was also greatly assisted by a comprehensive family report prepared by Mr Kyall Sheppard, family consultant. Mr Sheppard was cross-examined.
The law
The fundamental provision of the Family Law Act 1975 (“the Act”)
in determining any application for parenting orders is that requiring the consideration of the child’s best interests to be the paramount consideration.[1]
[1] Section 60CA of the Act.
In determining the best interests of the child the Court must consider the matters set out in s.60CC(2) of the Act being the “primary considerations” and s.60CC(3) being the “additional considerations”. The context of these primary and additional considerations comes from s.60B of the Act which sets out the objects and principles of Part VII
of the Act. The objects of the Act relating to children are to ensure that their best interests are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.[2]
[2] See s.60B(1) of the Act.
The principles underlying these objects are that, except when it would be contrary to the children’s best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).[3]
[3] See s.60B(2) of the Act.
The Act provides a statutory course of consideration for the Court. Firstly, there is a presumption that parents have equal shared parental responsibility for their children. This usually involves the responsibility for making more long-term and important decisions for children. That presumption can however be rebutted if the Court determines that the parents having equal shared parental responsibility would not be in a child’s best interests. Alternatively, the presumption does not apply if there is evidence of domestic violence or abuse. Should there be a determination of equal shared parental responsibility then the Court is obliged to consider a number of configurations of time for the children being equal time or “substantial and significant time”.
In the matter before me the mother opposes any order for shared parental responsibility. The father does not seek such an order and concedes that responsibility to the mother. Consequently, I am not obliged to consider the options of equal time or even “substantial and significant time”. Indeed, it is clear that the father seeks very limited time with the child. In any event, should such a determination have been necessary the evidence, as will become apparent, would leave me with little hesitation in finding that it would not be in [X]’s best interests for these parents to share parental responsibility and also that the presumption not be applicable.
Ultimately, I must reference the statutory considerations in s.60CC
of the Act to the probative evidence before me and the proposals of the parties to make orders which have [X]’s best interests as the paramount consideration.
Section 60CC factors
Primary considerations
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents
The Act itself does not define “meaningful”. Nevertheless, the Full Court of the Family Court of Australia[4] has endorsed the view
of Bennett J in G & C[5] where her Honour said that the consideration was a “prospective” one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents
is going to be of advantage to the child. To make such a prospective enquiry, the starting point is of course to consider the current nature
of the relationship between the child, then the proposed regime, and the child’s relationships generally with other relevant people.
Some emphasis should be placed on the word benefit to be achieved for the child from the proposed relationship.
[4] In McCall & Clark [2009] FamCAFC 92.
[5] [2006] FamCA 994.
Justice Brown in Mazorski & Albright[6] considered the concepts
[6] [2007] FamCA 520.
of “benefit” and “meaningful”. Her Honour said at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or
a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not
a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Currently [X] has no relationship or connection of any nature other than biology with the father. Consequently, I must consider the father’s proposal on the evidence and in respect of the “benefit” accruing
to [X] of a relationship and whether such a relationship is to be “important, significant and valuable to the child”.
[X] is four years of age. He does not know with any certainty that his father is not Mr M. Certainly, he does not know of the existence of
Mr Martin save and except that the mother has spoken of a “nasty man” who may want to be involved in [X]’s life. The visits proposed by Mr Martin are infrequent and to take place in a contact centre environment for the immediate future. The mother makes reference to each of these facts and asks the Court to find that there would be no benefit for [X] in such a relationship.
The family consultant, Mr Sheppard, was cross-examined on this point. He is of the view that there would be a benefit to [X] in establishing his self-identity. Mr Sheppard acknowledged that Mr Martin would not have a role as a carer or a traditional fathering role but that [X] would have an understanding that he has a biological father. He says that this will allow [X] to contextualise his other relationships with relevant adults such as teachers and family. The clear tenor of Mr Sheppard’s evidence is that there are long term benefits for [X] in having a knowledge of and relationship with his biological father.
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This is a primary consideration for the Court and one that is at the very crux of the determination I am to make.
The mother’s evidence is that she was never in a mutual relationship with Mr Martin. She says that they shared a house as flatmates. She says that there were brief sexual encounters but without commitment. Ms Ison’s evidence is that the father displayed a controlling and coercive attitude towards her. She says that when they vacated their joint residence, he moved into her new home without invitation and would not leave. A large part of the mother’s trepidation relates to what she says is this coercive and harassing behaviour. She says that the father’s application is motivated only by his desire to find her and continue to harass her.
The mother alleges that on 8 May 2005 the father threatened her and Mr M with a length of chain. She says that she was in a car and that Mr Martin charged towards the car causing her to believe that
he intended to kill or injure her and Mr M.
The evidence is that the father pleaded guilty to these charges in
the Magistrates Court at [W] in April 2006. Surprisingly, in his sworn evidence in these proceedings he denies the particulars of that complaint. He blames his plea of guilty on poor advice from his solicitor. Having the advantage of seeing and hearing the father, the mother and Mr M give evidence in respect of this event in these proceedings, I prefer the mother’s version of events. I reject the proposition that he would plead guilty to such serious but false allegations simply on the advice of his solicitor.
The circumstances of Mr Martin believing that he was in a relationship with Ms Ison and finding that she was spending time with another man do not sit easily with his proposition that he was not “angry” with
Ms Ison and Mr M on the day in question.
Ms Ison gives further examples of what she says are Mr Martin’s violent tendencies and hence her fear of him. She says that he carried
a baseball bat in the boot of his car and on one occasion threatened
the partner of his ex-wife, a Mr O. She says that he was threatening towards yet another partner of his ex-wife, a Mr K.
Ms Ison and Mr M give disturbing evidence that Mr Martin
had threatened to kidnap the daughter of his former partner and to slit her throat as well as making references that he would kill any child
of his that anyone attempted to take off him. Ms Ison says that she takes such comments seriously and hence she fears for [X]’s safety.
Having had the opportunity to see the demeanour of Ms Ison in the witness box, I can find that she is an anxious and fragile personality. She was tearful throughout much of her evidence. She continually repeated her fears for herself and her son of actual violence at the hands of Mr Martin. The hearing was stood down on a number
of occasions to allow Ms Ison to gather her emotions.
Ms Ison has previously taken out an intervention order against
Mr Martin. He did not oppose that order but there was no evidence
as to whether or not he did so without admission as to the facts.
Nevertheless, the mother’s alleged fears must be put within the context of Mr Martin’s application to spend time with [X] firstly within
the safe confines of a contact centre. I must consider whether her fears are genuine and rationally based.
Essentially, the issue of the father’s alleged violence and violent temperament is one of credit as between the parties. I have already found against the father in his denials of the particulars of the allegations of 8 May 2005. It follows that the Court should have concerns where there is a lack of acknowledgement by him of violence. His evidence generally is that he has neither perpetrated nor threatened violence towards Ms Ison or the other persons she mentions.
However, there are also issues of credit in respect of the mother’s evidence and that of Mr M. The mother says that she heard of the disturbing allegations in respect of Mr Martin threatening to kidnap and slit the throat of his former partner’s 12-year-old daughter only during the course of these proceedings in mid-2009. She says that she was told by Mr M. However, Mr M in his evidence says that he told the mother of these events when they came to his attention in December 2004. Further, and despite the abhorrent nature of the threats, Mr M says that he did not contact the police, child protection authorities or even the child’s mother. The inconsistency between the evidence of
Ms Ison and Mr M is concerning.
The psychologist Ms M is providing therapy to Ms Ison in relation to her fears of Mr Martin. It eventuated under cross-examination that
Ms M had been told a more embellished version of these events and generally the history between the parties by Ms Ison. Ms M was under the belief that Mr Martin had wrapped a chain around Ms Ison’s neck in the May 2005 incident. She had been told by Ms Ison that she had been “left in the middle of a road in the middle of nowhere”. Ms Ison had told her that Mr Martin had “threatened to take her life and [X]’s life”. She had been told that Ms Ison had been “verbally abused and attacked”. These particulars are not mentioned in Ms Ison’s affidavit material or in her evidence in Court. Whilst Ms M is of the view that Ms Ison’s fears are “genuine”, she concedes that she can only work from a premise of what she had been told of the background events.
I must consider that Ms Ison commenced therapy with Ms M only in October 2009 with the hearing in this matter pending and consequently the possibility of Ms Ison embellishing and exaggerating the background facts to benefit her argument in these Court proceedings.
Similarly, Mr M’s affidavit can be considered misleading after hearing him cross-examined. In that affidavit he makes reference to Mr Martin by saying (at paragraph 1):
…He has a violent reputation in [W] and I have heard of numerous incidents of his stalking his former wife… I had
a conversation with him where he described in detail his plans
to kidnap his stepdaughter.
Under cross-examination Mr M admitted that his only knowledge of Mr Martin’s “reputation” had come from a conversation that he had with Mr Martin himself. As mentioned above, Mr M did not see fit to report the prima facie serious allegations in respect of the young girl. He has no personal and direct knowledge of Mr Martin stalking his former partner. He has no direct knowledge of Mr Martin threatening or perpetrating violence except for the incident of 8 May 2005. The only information he has came from Mr Martin himself, and the veracity of such statements, especially when uncorroborated, is dubious and may be nothing more than “self-promotion” or bravado by Mr Martin especially if made to Mr M whom he considered an opponent for
Ms Ison’s affections.
Under cross-examination the mother admitted that Mr Martin had never hit her or pushed her although “he has come close to doing so”. The mother does not have any direct knowledge of Mr Martin perpetrating any violence other than the incident of 8 May 2005 to which he pleaded guilty and received a fine without conviction.
There is no evidence of Mr Martin having any convictions prior to or subsequent to the events of 8 May 2005. No evidence was adduced from his former partner. Indeed, there was no real corroborating evidence as to Ms Ison’s allegations (excepting the conviction from the events of 8 May 2005). No evidence was adduced from Mr K or Mr O, the two gentlemen allegedly threatened by Mr Martin.
Allegations of violence and abuse whether they be physical
or psychological are common in family law matters. They are complex issues for the courts. Corroboration can provide some objective verification particularly when given by neutral third parties.
In no sense can Mr M be defined as being neutral.
An important factor in considering the credibility of allegations
of violence, particularly serious allegations, is the response made. Again, neither Mr M nor Ms Ison have taken these serious threats to the authorities or indeed to the mother of the 12-year-old girl.
After hearing and considering all of the evidence and having the advantage of seeing the demeanour of the parties and the witness
in Court, I come to the following conclusions:
a)That there was a violent incident on 8 May 2005 in the terms portrayed to the Court by Ms Ison and Mr M.
b)That Ms Ison has embellished the version of events of 8 May 2005 and provided a factually exaggerated background to her psychologist, Ms M.
c)That Mr Martin did show traits of coercion and control in refusing to extract himself from what he saw as a relationship with Ms Ison and manifested in his violent actions on 8 May 2005.
d)
That the mother is a fragile and emotional personality and may be genuinely affected by the events of 8 May 2005 but that there
is no evidence of sufficient probity of any other violent history
on the part of Mr Martin.
The evidence taken as a whole, particularly following cross-examination, leads me to conclude that the mother has embellished much of her evidence in respect of Mr Martin’s violence and violent temperament and tendencies. I reach the same conclusions in respect of Mr M.
I consider all of these findings within the context of the application which is for immediate time to take place within a contact centre environment.
In making these findings I am also influenced by the evidence of the mother in the witness box when she said that should [X] ask to see his father when he is older then she will “do all that it takes to make that happen” with the only condition being that she and Mr M be present at any contact visits. This evidence is at odds with what the mother says are her profound fears of violence at the hands of the father.
Additional considerations
Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child is four years of age and has no knowledge of the father.
This sub-section is not relevant.
Section 60CC(3)(b) - the nature of the relationship of the child with each of the child’s parents and other relevant persons
The factual background and current nature of the child’s relationship with the father is set out above. There is no relationship. The issue before me is as to whether any such relationship is in [X]’s short and/or long term interests.
Section 60CC(3)(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
It is the father’s case that the mother will do whatever she can to avoid a relationship between he and [X]. This has involved her moving
to Queensland. She has placed Mr M’s name on the birth certificate. She opposes any relationship whatsoever including the limited and supervised time that he seeks.As mentioned above, the mother, rather surprisingly, volunteered from the witness box that she would assist [X] in a relationship with
the father in the future if [X] expressed such a desire.Taking the evidence as a whole, however, and having heard and seen the mother in Court, I can have no confidence that she would encourage any relationship of any nature. That is, her statements
as to assisting in the future are blatantly at odds with the rest of her evidence. She is currently vehemently opposed to there being
any relationship between [X] and the father. Whether or not her reasoning is objectively or subjectively rational, the concept of Ms Ison being able to promote any form of relationship is improbable.
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child
There would inevitably be effects on [X] by an introduction of
Mr Martin into his life. This is the very essence of the matter before me and is dealt with in detail throughout these reasons.
Section 60CC(3)(e) – the practical difficulty and expense of the 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
The relevance of this consideration is as to whether the father can and will adhere to his commitment if an order is to be made for him between he and [X]. The evidence is that he is not a person of means. He does however have family living in Queensland so as to lower his accommodation costs.
Section 60CC(3)(f) – the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The question of capacity in the father relates to whether he could maintain a relationship in the terms of the orders he seeks. He is on
a disability pension. He proposes, however, that he would travel
to Queensland on a regular basis for a number of years to establish and maintain a relationship with [X]. He does, however, have a brother who lives in Queensland and presumably has an accommodation base there. It would be crucial, of course, that should a relationship
be established then it be maintained. The benefit to [X] would
be of consistency and development of that relationship over time. Should the relationship commence and then stop then the detriment
to [X] would be significant. On balance, however, I am of the view that the father has the capacity to participate in [X]’s life in the way that he envisages.The capacity of the mother is very much at issue in this case.
She argues that her parenting of [X] will be compromised simply
by reason of her own fears of the father. The courts are regularly called upon to consider such an issue as for instance in Sedgley and Sedgley[7] where the Full Court set aside orders giving the father time with the child. The facts in that matter were that the father had consistently over some years threatened and intimidated the wife. He had retained the child at the end of contact periods and generally shown no respect for court orders. The Full Court in that matter said at [82,259]:Whilst the welfare of the child might require some continuity of contact with the non-custodial parent, the need for peace and tranquility in the custodial parent's household may be a more compelling need for the child.
[7] (1995) FLC ¶92-623.
The decisions of the Full Court in Irvine and Irvine[8] and Re Andrew[9] are authority for the proposition that if the Court is of the
view that should a parent’s capacity to properly care for a child
be so compromised by that parent’s fear of the conduct of the other parent then time with may not be in a child’s ultimate best interests. That fear must be genuine and should be rationally based even if onlya subjective rather than objective fear.[8] (1995) FLC ¶92-624.
[9] (1996) FLC ¶92-692.
In this respect it is proper to examine all of the relevant circumstances of each case.
I have found that the mother is a fragile personality and my findings
as to the version of events of 8 May 2005 give credence to her fears. That event, however, is some five years ago and there is no evidence
to allow me to make findings that the father’s behaviour has been consistent or continuing.I must take the mother’s evidence within the context of the following:
a)Her own psychologist, after three sessions, described Ms Ison
to the family reporter as being “resilient and coping”.b)The mother will on her own evidence have the continuing support of her psychologist Ms M who, whilst diagnosing a major depressive disorder, says in her report:
It is possible that [Ms Ison] can make a full recovery, however this is dependent on a correlation of factors. Ongoing therapy sessions will assist in better establishing her progress and likelihood of possible full-recovery.
c)The mother has the ongoing support of Mr M. Whilst I have some doubts as to the way they each describe their relationship, Mr M was, despite a tendency to taper his evidence as described above, an impressive witness. He is clearly supportive and committed to both the mother and [X]. His evidence generally, albeit worthy of criticism in some respects, showed him to be more objective and realistic and certainly less emotional than the mother. I am confident that he would support both Ms Ison and [X] through the difficulties that she may encounter in the early days of [X] establishing a relationship with his father.
d)Mr Sheppard in cross-examination was loath to concede that
his observations of the mother were that she was fearful of the father but more that she was distressed and anxious. Whilst not diminishing the significance of 8 May 2005 in the mother’s mind, it is open for me to find that these emotions are consistent
with her reluctance generally in [X] having a relationship with his father rather than any specific fear.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
[X] is still young and this is obviously a consideration as to whether there be orders at all and, if so, what orders are in [X]’s best interest. The proposal for use of a contact centre is also relevant to the issue
of [X]’s age and level of maturity.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father is criticised for not bringing an application earlier and that the child is now four years of age. The evidence is that the father
did seek legal advice some time prior to bringing this application and that he was firstly required to locate the mother and then to complete
paternity testing procedure. He also says that he did not act initially because the mother had an intervention order against him and at that time he was not told that he was [X]’s father. In all of these circumstances I do not criticise the father for not commencing proceedings until mid-2009.The father was also criticised for pursuing this application
but not seeking to spend time with his son, [Y], from a previous relationship and also not pursuing contact with the 12-year-old daughter of his previous partner who for all intents and purposes was described as a “stepdaughter”. That child had apparently contacted
Mr Martin after her mother had separated from him. She had brought him a card calling him “dad”. Whilst his explanations in respect of not pursuing relationships with both [Y] and the girl were inadequate,
I accept what Mr Sheppard says that Mr Martin is genuine
and altruistic in his quest for a relationship, albeit a limited one, with [X]. Mr Martin presented in the witness box as immature in many ways and lacking insight generally and this may explain his reluctance in respect of the other two children. However, there is no evidence, other than the mother’s bald statements, to lead me to find that
the father’s motivation is other than what he says being simply that
he wants [X] to know that he has a biological father and to identify with him as such.In many ways credit might be given to Mr Martin in not pursuing more detailed orders in respect of [X] and limiting himself to a very basic first step in a staged introduction to the child.
The mother’s attitude towards [X] spending time with the father is best put by her repeated statements from the witness box that: “I don’t want him to see my son”. That attitude is consistent and uncompromising. The question for the Court is as to whether it is motivated by genuine and rational fear or by an ulterior motive such as simply wanting to avoid any relationship between [X] and his biological father because of her own agenda and other than the child’s best interests.
The mother’s attitude to the father can be summarised by her own admission that she has told [X] that there is a person interested
in seeing him, albeit apparently she has not told [X] that this person is his father, but described him as “the nasty man”.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family; and Section 60CC(3)(k) – any family violence order that applies to the child or a member of the child’s family
Such issues are central to the mother’s argument and have been dealt with in detail elsewhere in these reasons.
Conclusions
After hearing and considering all the evidence, I make the following findings:
a)That the father did perpetrate violence or threats of violence
on the mother and Mr M in May 2005.b)That there is no persuasive evidence of any consistent or ongoing violent behaviour by the father.
c)That the father’s application is a bona fide and altruistic one
in respect of [X] and not, as the mother says, intended only
as a form of harassment and stalking of her.d)In accordance with the opinions of the family consultant, that there are benefits to [X] in knowing his biological father and establishing a relationship with him in that it will assist his self-identity. This is, of course, conditional upon Mr Martin approaching that relationship in both a committed and understanding manner.
e)That the mother is an anxious and fragile personality compounded by her diagnosis of depression.
f)That the mother’s claims of fears for the safety of herself and [X] are unsubstantiated on the evidence.
g)That whilst the fact and establishment of a relationship between [X] and his father will cause the mother some anxiety
and stress, she has sufficient resilience and support mechanisms
to cope with that situation particularly given the safe environment of a contact centre where [X] would be spending time with his father initially.h)The mother can also glean confidence from the fact that the father does not seek any decision-making role in respect of [X] in the sense of exercising parental responsibility. He concedes this role to the mother.
Following from these findings and after consideration, I am of the view that orders should be made for [X] to see his father at a contact centre in Queensland.
The question then becomes whether the orders should be final
or interim. The making of interim orders essentially in the terms of the father’s application is problematical in that the orders he seeks see
his time with [X] limited to being supervised at a contact
centre commencing August 2010 until August 2012. Of course,
if circumstances change for the mother or [X], or indeed the father did not adhere to the orders then it would be open for the mother
to bring the matter back to Court. Consequently, on reflection, I am of the view that the orders should be final in their terms.There will be orders in the terms of the father’s proposal as set out at the beginning of these reasons. Given that it is intended for [X] to establish his identity with his biological father, I further consider it proper that the mother provide the father with details of any major illness or accidents suffered by [X] together with regular information as to his education.
The evidence convinces me that both parents would benefit
by attending a recognised post-separation parenting program and that the mother should obviously continue to receive psychological assistance from Ms M or another suitably qualified professional.Given the mother’s use of the term “the nasty man” to describe
Mr Martin to [X], it is appropriate that there be the mutual non-denigration order sought by the father.Further and given my comments as to the mother’s fragile emotional state generally, I do not accede to the father’s proposal that he be provided with her address and telephone contact. The father seeks an order whereby he receive regular information as to [X]’s schooling. I have considered whether such an order might indirectly give the father access to the mother’s precise residential situation. However, I believe that the mother and the school can make appropriate provisions to protect against such inadvertent disclosure. The general locality of the mother is of course already known. For practical purposes, however, the situation should be avoided where the mother again moves [X] interstate. Consequently, there will be an order restraining the mother from relocating [X] from the south-eastern Queensland area without the express written consent of the father or an order of the Court. The mother, at her request, was not required to divulge her residential address at the hearing, but the evidence makes it clear that her residence generally is in south-eastern Queensland.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of McGuire FM
Associate: A Creek
Date: 21 April 2010
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