Martyn and Capuana
[2012] FMCAfam 701
•25 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARTYN & CAPUANA | [2012] FMCAfam 701 |
| FAMILY LAW – Parenting dispute – consent orders in 2011 allowing for gradual progression to unsupervised time – father breaching orders on first opportunities to do so – whether father should undertake parenting orders programme and whether unsupervised time should be suspended. |
| Family Law Act 1975, s.60CC |
| Applicant: | MS MARTYN |
| Respondent: | MR CAPUANA |
| File Number: | MLC 10397 of 2010 |
| Judgment of: | Burchardt FM |
| Hearing date: | 15 June 2012 |
| Date of Last Submission: | 15 June 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 25 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Mort |
| Solicitors for the Applicant: | Roger O’Halloran & Co |
| Counsel for the Respondent: | Mr P. Renwick |
| Solicitors for the Respondent: | Kennedy Guy |
THE COURT ORDERS THAT:
Order 5(d)(ii) of the orders made 31 October 2011 be suspended until the Respondent father undertakes a post-separation parenting course and provides a certificate of completion to the solicitors for the Applicant mother.
The father spend time with the child X born (omitted) 2010 supervised by (omitted) Centre at times appointed by that Centre.
Order 2 of these orders be discharged upon compliance with Order 1.
AND THE COURT NOTES 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 Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Martyn & Capuana is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10397 of 2010
| MS MARTYN |
Applicant
And
| MR CAPUANA |
Respondent
REASONS FOR JUDGMENT
Introductory
On 31 October 2011, Walters FM made final orders between the parties in this proceeding which governed, relevantly, the time that X, born (omitted) 2010 (“the child”), would spend with his father. Put shortly, a gradual scheme of extension of time from supervised time at (omitted) Centre through to time at a play centre and eventually to time unsupervised was contemplated.
On the first two occasions of unsupervised time which took place on
17 March 2012 and 24 March 2012, Mr Capuana comprehensively breached the orders. The mother seeks that the father’s unsupervised time cease, that time continue to be spent at the play centre until X reaches the age of three and that this itself only occur following the father completing a Parenting Orders Program.
The father seeks that the order for unsupervised time continue.
For the reasons that follow, I propose to make the orders sought by the mother.
The course of events until March 2012
A family report was prepared for Walters FM. It recorded the not inconsiderable personal difficulties that both the mother and the father had had in their lives, including significant difficulty with drugs. I note that the report writer said at paragraph 53:
“Even before reading the subpoenaed material the writer had formed the view that Mr Capuana is a significantly emotionally damaged man.”
She previously recorded at paragraph 41:
“… It seemed to the writer that Mr Capuana is indeed emotionally dependent on his mother, and therefore, significantly under her influence.”
At paragraph 71, the report writer observed:
“What is interesting generally – and highly relevant in the present context – about the subpoenaed material, particularly notes from the (omitted) Special School, RCH and DHS from the early 1990s, is that they not only confirm the circumstances of Mr Capuana’s emotionally deprived and abusive childhood, but they also seem to make plain and confirm Ms Martyn’s assessment that the paternal family have been, and may continue to be, part of the violent hard-core, (omitted) drug scene.”
At paragraphs 78 to 80, the reporter said:
“78. Ms Martyn has been diagnosed with ADHD, and, possibly, OCD and bipolar disorder. Any one or all of these conditions would of course be made much worse by prolonged heroin use. For his part, there can be no doubt that Mr Capuana is an emotionally damaged, immature man, on account of his destructive childhood experiences.
79. It is respectfully suggested that the court may wish to proceed cautiously with this matter. While Ms Martyn has had good reason to be fearful of Mr Capuana, Mr Capuana is known to X and, in fact, the child enjoys his father’s company. It is not possible at this stage to say whether Mr Capuana is bonded with X or whether X has an attachment to his father. However, X knows his father and is not in any way anxious or frightened in his presence. Indeed Mr Capuana has been observed to be affectionate and protective towards his son.
80. Recommendations will be framed to continue supervised contact for a further period; followed by the introduction of longer, unsupervised daytime contact, once Mr Capuana resumes living in his own (omitted) home. The possibility of overnight contact in the writer’s view should not be considered before X is aged 3; should be considered in mediation and, again, only as long as Mr Capuana continues living in his own home. If what the maternal family allege is shown to be correct, it is respectfully suggested that, as far as possible, the paternal grandmother not be involved in caring for X for long periods, transporting the child, or being present at changeovers.”
Recommendations were then made which were substantially adopted in the orders made by consent on 31 October 2011. I have already paraphrased their effect earlier. There is no doubt from the reports of the visits at (omitted) Centre that the time spent between the father and the child went very well. There is no doubt that the child has a real engagement with his father and that the father dotes on him.
It should be noted, however, that despite all these excellent developments, it was always the case that time which was to be unsupervised was subject to the express condition that the father live in his own home in (omitted) and that the father be in attendance for all periods of time spent and not delegate the care of the child to any other person without the mother’s prior written consent. Likewise, the father was prohibited from allowing the child to attend the home of the paternal grandmother.
The events of March 2012
Following four visits to his father’s home at Property P (which had been inspected by the mother’s father beforehand), from 10.00 am till 2.00 pm, 17 March was the first period of time when the father was to spend between 9.00 am and 5.00 pm with changeovers at the (omitted) Police Station.
The mother did not, in fact, believe that the father was living at the Property P address but thought that he was continuing to live with his own mother at Property S.
The mother did not trust the father and engaged a private investigator to keep an eye on him. That observer was a Mr G who has provided a report on affidavit. Mr G’s affidavit purports to show Mr Capuana (who is asserted on a hearsay basis by Ms Martyn to
Mr G to have left the (omitted) area at about 9.20 am) arriving at his mother’s home at Property S at 10.24 am. The inference is irresistible that if this is true (and it is not denied) the very first thing Mr Capuana did was to breach the order about taking his child to his mother.
Mr G deposed that at 10.26 am, Mr Capuana was observed to turn to talk to his mother while in the middle of the street while holding X as a car approached and which ultimately passed close to him. From photographs 12 and 13 of those taken on 17 March 2012, it is clear that that is correct, although it is not clear, despite the inherently feckless nature of the father’s conduct, that the child was in fact in danger.
At 11.59 am, Mr Capuana, who had already left Property S and put X in his vehicle, parked his vehicle on the wrong side of the road outside Property S then alighted from the vehicle with the child still in it and went back briefly into the house. Several oncoming vehicles had to go around Mr Capuana’s illegally parked car.
These were the most significant incidents observed by Mr G on that day.
On 24 March 2012, once again Mr G was on duty. From the material filed by Mr Capuana, it is clear that at 10.44 hours, Mr Capuana attended his mother’s address at Property S and collected her. X was in the car with him at the time. At 11.15, Mr Capuana and X arrived at Property P. At 13.15 hours, Mr Capuana, having been for a walk, returned with X to his home in Property P and at 14.26, his mother, Ms A, arrived. It should be noted that this aspect of the evidence is in issue.
At 14.43, Mr Capuana was seen to get into a black (omitted) alone and depart, and he then returned at 15.50 hours.
Ms A had not left the Property P address during this time.
The evidence of the mother
The mother’s evidence was generally unremarkable. She accepted the force of the family report but asserted inter alia that the father always denies everything of which he is accused. She said that the most important matter for her is that X be secure, and she complained of the failure of the father to complete a drug screen when requested to do so. She supported the father seeing X but only in the event that X was to be secure.
Evidence of Mr G
Mr G, it can be said shortly, was an excellent witness. He was challenged as to his assertion that picture 16 shows Ms A arriving at Property P. It was Mr Capuana’s position that this was in fact somewhere else.
Not only was Mr G a disinterested witness in the sense that he has no obvious partiality, and not only did he give his evidence in my opinion entirely convincingly, but it is quite clear from pictures 3 and 4 taken on 24 March 2012 that they are of the Property P address.
Mr G was an excellent witness, in any event. I have no doubt he was telling the truth.
The Evidence of the Father
Mr Capuana gave his evidence (understandably enough given his personality and the very vivid concerns he has about his relationship with his son) in a somewhat tense way in which there was some pressure of speech.
He asserted that he was now familiar with the orders of 31 October 2011. Nonetheless, he is clearly literate and he also asserted that counsel explained those orders to him at the time. He said words to the effect, “All I want is my son” and referred to the fact that his own father had played no part in his life, something he did not wish to have occur for X. He said over and over again how much he just wished to see his son.
He was not able to understand that the mother might have protective concerns and referred, very much by way of complaint, to the long time it had taken him at (omitted) Centre and at the play centre before he was allowed unsupervised time.
Under cross-examination he was compelled to concede that he had been convicted for cultivation of illicit drugs in November 2011, although he asserted that this related to a time when he was living with the mother. He said he had completed a CBO of nine months only the week before.
He sought to explain his failure to take a drug screen on the recent loss of his wallet and the consequential lack of photo ID. He said he had been to a screening unit but without proof of who he was, he was unable to take the screen. I found the evidence given in this regard remarkably unpersuasive, especially since he later said that he had not understood he had to actually undertake drug screens but now did.
He denied leaving X in anyone else’s care. He admitted that his mother and her partner had drug convictions and could at least see that the mother might have concerns about him.
He said that he took the child to his own mother because he wanted her to see him but said that he would “follow every order.” He expressed more than once remorse at breaching the orders, seeking to defuse the effect of the admission by referring to his lack of educational attainment and skills.
I have to say that I did not find the expressions of remorse at all convincing.
He conceded that he had left his child in the car and parked on the wrong side of the road and that this was not a wise choice. He confirmed that he did not pay the child support despite being employed, although in re-examination he said he would do so if required.
Perhaps most concerning of all, when challenged by counsel for the mother as to undertaking the parenting orders program to enable him better to understand the Court’s orders, he roundly denied the proposition that this would be of utility and made it clear that he would not undertake such a program.
Conclusions on the Evidence
The mother’s evidence was unremarkable. In the circumstances of this application, her credit was not significantly an issue and she was, in my view, a believable witness.
Mr G, as I have already said, was an excellent witness.
Mr Capuana, unfortunately, was not a good witness. I find particularly perturbing the assertion that he had not left X with his own mother at Property P on 24 March 2012.
It is absolutely clear that this is untrue and that he did.
I also find it disturbing that a man who says so stridently that he will follow every order the Court makes basically indicates something akin to a refusal to undertake a parenting orders program if ordered to do so. He also comprehensively breached the orders about leaving his child in anyone else’s care and taking him to his grandmother almost at the very first opportunity to do so.
Conclusions
The troubling aspect of this case is that, on the one hand, everyone agrees that, in principle, it is thoroughly desirable that X spend time with his father and that time is gradually progressed to unsupervised time. On the other hand, however, the mother has protective concerns which are amply justified not only by the historical material to which I have referred but by the father’s extraordinary behaviour in March 2012. It is plain that he treats orders of this Court with contempt.
Of itself that is a matter which, in theory, is capable of being addressed simply by contravention provisions and the relevant sanctions. But in the context of this case, there is more to it. The Court is concerned, first and last, with the best interests of the young child. It is appropriate to bear in mind the provisions of s.60CC of the Family Law Act 1975 (“the Act”).
Here there is no doubt that in principle, as I have already said more than once, it is desirable that X have the benefit of a relationship with his father. Equally, he needs to be protected from the risk of being exposed to abuse, neglect or family violence.
It was because of concerns about those matters that the various restrictions to which I have referred were put in place.
Given the relatively narrow area of dispute between the parties, it is not appropriate to trawl through each of the various matters in s.60CC(3) seriatim. What is apparent, as things presently stand, is that:
a)until and unless the father gets a better understanding of his obligations to comply with orders, he will continue to breach them;
b)as a result, the child is more likely than otherwise to be exposed to his grandmother’s home, which it has already been agreed, by virtue of the October 2011 orders, is not in his best interests;
c)the child is also more likely than otherwise to be left in the company of others which is likewise by virtue of the October 2011 orders agreed not to be in his best interests; and
d)the mother’s health will be impacted by the anxieties fuelled by the father’s conduct, and this plainly is equally not in the best interests of the child. The mother, who has her fragilities in any event, will be affected by the father’s conduct and this can only be to X’s detriment.
In a curious sense, the father’s very disdain for and reluctance to engage in the parenting orders program designed to assist him to understand the importance of complying with the Court orders and enabling him to do so is, in a sense, the obvious reason why he ought to.
Given the father’s breaches of the Court’s orders, and the self-evident risk, for the reasons I have given, to X in the event that continuing breaches take place, it is in my view wholly appropriate to make the orders that the mother seeks.
It should be noted that it is not entirely clear to me whether the mother’s position was that all time should cease, pending completion of the parenting orders program, or whether time should continue on a supervised basis in the interim.
I will hear from the parties further before making final orders. The father will certainly have to complete a parenting orders program and provide a certificate of the same, and his time will certainly have to be supervised until such time as the Court can be satisfied that he understands his obligations.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 25 July 2012
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