Mashman and Lockwood
[2009] FMCAfam 1171
•26 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MASHMAN & LOCKWOOD | [2009] FMCAfam 1171 |
| FAMILY LAW – Children – best interests – dependence upon nitrazepam – abuse of alcohol – psychiatric disturbance – parental capacity – whether orders should be final or interim. |
| Family Law Act 1976 (Cth) ss.60B, 60CC, 61DA, 65DAA |
| Bolitho and Cohen (2005) FLC 93-224 Mulvany & Lane (2009) FLC 93-404 |
| Applicant: | MR MASHMAN |
| Respondent: | MS LOCKWOOD |
| File Number: | LNC 289 of 2008 |
| Judgment of: | Roberts FM |
| Hearing dates: | 23 & 24 June 2009 |
| Date of Last Submission: | 24 June 2009 |
| Delivered at: | Launceston |
| Delivered on: | 26 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Murray |
| Solicitors for the Applicant: | Murray & Associates |
| The Respondent was not represented by a lawyer. |
| Counsel for the ICL: | Mr P. Welch |
| Solicitors for the ICL: | Philip Welch |
ORDERS
That all previous orders are discharged.
That until further order MR MASHMAN (“the father”) have the sole parental responsibility for [X] born [in] 2006 (“the child”)
That until further order the said child is to live with the father.
That until further order MS LOCKWOOD (“the mother”) is to spend such time with the child as may be agreed to by the father.
That until further order the mother or any person acting on her behalf is hereby restrained from removing the child from the care or supervision of the father or any person with whom the father has placed the child.
That until further order the mother is restrained from entering the father’s home or any other premises where the father and the child may be residing and the mother is further restrained from approaching within fifty (50) metres of such residence.
That until further order the mother or any person acting on her behalf is hereby restrained from entering upon the premises of (the child’s child care centre) or any other child care centre or school that the child may be attending from time to time.
That the appointment of the Independent Child’s Lawyer be extended by at least twelve months.
That the matter is otherwise adjourned for mention in Launceston at 10.30 a.m. on 29 November 2010.
IT IS NOTED that publication of this judgment under the pseudonym Mashman & Lockwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNC 289 of 2008
| MR MASHMAN |
Applicant
And
| MS LOCKWOOD |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant is MR MASHMAN (“the father”) and the respondent is MS LOCKWOOD (“the mother”). The proceedings are about proper arrangements for the care and welfare of their child [X] born [in] 2006 (“the child”), who is known to both parties affectionately as [X].
The orders that the father sought in his Case Summary were as follows:
1. That the applicant father … have the sole parental responsibility for the child…
2. That the said child live with the father.
3. That the mother spend time with the said child as follows:
a. For up to two hours once per week at the Launceston Children’s Contact Centre to be supervised by the said Centre on such day and at such times as may be nominated from time to time by the said Centre;
b. For such additional or alternate times as may be agreed between the parties from time to time provided that such additional or alternate time is supervised by (the maternal grandfather).
4. That the mother or any person acting on her behalf is hereby restrained from removing the child from the care or supervision of the father or any person with whom the father has placed the child.
5. That the mother is restrained from entering (the father’s home) or any other premises where the father and the child may be residing and the mother is further restrained from approaching within fifty (50) metres of such residence.
6. That the mother or any person acting on her behalf is hereby restrained from entering upon the premises of (the child’s child care centre) or any other child care centre or school that the child may be attending from time to time.
In his opening, counsel for the father indicated that paragraph 3(b) would not need to be restricted to supervision by the maternal grand father but could simply be as agreed between the parties from time to time. He pointed out that if such an order was made, the father may well agree to supervision by her father.
The mother, who was not represented by a lawyer at the hearing, had filed an Amended Response in May 2009. At the start of the hearing I explained to her that I could not understand that document and I needed to know what orders she was seeking. It became apparent that she was still seeking orders as set out in her Response filed in August 2008 (at a time when she had been represented by the Legal Aid Commission of Tasmania). The orders sought in that document were:
1. THAT the Father and the Mother have the equal shared parental responsibility for the child….
2. THAT the child live with the Mother.
3. THAT the father spend time and communicate with the child as follows:
(a) Each week from Thursday at the conclusion of the child’s day care until Sunday at 10am;
(b) For one half of all special occasions at times agreed between the parties;
(c) At such further or alternate times as agreed between the parties from time to time.
4. THAT neither party consume alcohol whilst the child is in their care.
5. THAT both parties are hereby restrained from removing the child from the State of Tasmania without the prior written consent of the other party.
Background
In this section I propose only to give a very brief outline of the background to the dispute between the parties. I will refer to other relevant factual matters below when I consider those factors that the law requires me to consider.
The parties commenced living together in mid-2005. The child was born [in] 2006.
Later in 2006 the parties’ relationship deteriorated to the extent that they lived separately but under the same roof in the father’s house until May 2008. That period of the separation in the same house was quite clearly a difficult time and it was necessary for the father to obtain a family violence order for his protection. It is a matter of history that the mother breached that family violence order and was arrested and held in detention on a number of occasions.
The father filed his originating application at the end of May 2008, and on 16 June 2008 I made urgent ex parte interim orders which provided for the following:
a)that the child live with the father and spend time with the mother as may be agreed between them from time to time;
b)that the mother not remove the child from the care or supervision of the father or any person with whom the father may have placed the child;
c)
that the mother not enter the father’s home or approach within
50 metres of it; and
d)that the mother not remove the child from any child-care centre that he may be attending.
On 1 September 2008 the parties consented to the discharge of my orders of 16 June 2008 and entered into further interim orders by consent which provided that the child was to continue living with the father and the mother was to spend time with the child for two hours each week at the Launceston Children’s Contact Service (“the contact service”). The appointment of an Independent Child’s Lawyer (“ICL”) was also ordered.
A fortnight later it was necessary for me to make further interim orders restraining the mother from:
a)removing the child from the care of the father or any person with whom he had placed the child;
b)entering the father's home or approaching within 50 metres of it; and
c)entering the premises of any child-care centre or school that the child may be attending.
I noted at that time that the parties were expecting to seek an expert report by consent and, indeed, orders were made by consent on
19 September 2008 for a report to be provided by Dr S (“the psychologist”). On 20 October 2008 her report was released to the parties’ lawyers and the ICL.
In January 2009 orders were made for the matter to proceed to a final hearing.
Records show that the mother has been treated hospitals in Victoria and Tasmania (both as an in-patient and as an out-patient) for psychiatric disturbances in 1996, 1997, 1998, 1999 and 2004, with the main diagnosis being “schizophrenia”. However, Dr R (“the psychiatrist”) has suggested that the episodes were more likely to be the result of drug induced psychosis than schizophrenia.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[1].
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [2]
[2] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children[3].
[3] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[4]
[4] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[5]
[5] Subsection 60CC(3)
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence[6]. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child[7].
[6] Section 61DA
[7] Subsection 61DA(4)
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[8]
[8] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[9]
[9] See subsections 65DAA(2) and (3)
It is clear that the court is not restricted to the proposals put forward by the parties. See Bolitho and Cohen.[10]
[10] (2005) FLC 93-224
The witnesses
The father relied upon his affidavit filed in March 2009 as well as affidavits of his brother and a friend. His brother and friend were not cross-examined because the mother had not given notice that they were required and the ICL did not require them for cross-examination.
The mother had filed a trial affidavit in March 2009 and she relied upon that and an earlier affidavit filed in August 2008 (both of which had been prepared by her former solicitors). Her former solicitors had also filed an affidavit by the psychiatrist, which attached his report to them. However, he gave oral evidence as a result of a subpoena issued on behalf of the ICL.
The ICL had also filed an affidavit by the coordinator of the contact service (“the contact coordinator”).
Oral evidence was given by the father, the mother, the psychologist, the psychiatrist and the contact coordinator.
Evidence of the Psychologist and the Psychiatrist
The psychologist and the psychiatrist had both provided written reports and both gave oral evidence. Before considering the evidence with specific reference to the considerations under 60CC of the Act, it is worthwhile summarising some of what they had to say.
It was abundantly clear from the evidence generally that the mother has a serious alcohol problem. However, she does not appear to be alcohol dependent, in that she is able to go for days at a time without alcohol. Unfortunately, when she does drink, she often drinks significantly to excess and becomes unable to control her actions. In his report, the psychiatrist said that the mother’s “pattern of alcohol use is not that of alcohol dependency but one of intermittent and opportunistic alcohol abuse (episodic excessive drinking)”. In his oral evidence he said that, although the mother needs to address that problem, it was her attitude that alcohol consumption was “a human right” and that she had no interest in abstaining.
It is very clear to me that both the psychologist and the psychiatrist have recommended courses of action that the mother needs to take, but it is also clear that she has shown an unwillingness to follow through with their recommendations.
The psychologist was obviously concerned about her non-compliance with any recommended treatment regime. The psychiatrist was similarly concerned. For example, in his report he said:
On the second visit, a programme for phased withdrawal of Nitrazepam was instituted, but it became evident within a few months that she felt unable to consistently reduce the dose of Nitrazepam, a long acting and habituating Benzodiazepine.
The psychologist provided a lengthy report (20 pages) in which she reported upon her interviews with the parties and her psychological testing of them both. She ended her report with the following summary:
Based on the information provided to me while conducting this assessment, I have the following points to make:
• Despite the concerns raised during this assessment regarding psychological and substance abuse issues relating to (the father), it appears that (the child) is receiving an adequate level of care from (the father);
• I am of the view that (the mother) has a history of substance abuse and mental health concerns and that these concerns are not currently resolved.
• (The mother)’s ability to adequately meet the needs of (the child) is strongly dependant upon her commitment to addressing the psychological and substance abuse issue identified during this assessment;
• I believe that (the mother) would benefit from some parenting education specifically in relation to the emotional needs of children;
• I would suggest that (the mother) be required to address any substance abuse issues (with professional assistance) that may be identified through drug and alcohol screening;
• From a psychological point of view, (the child) would benefit from regular and consistent and safe contact with both of his parents;
It was also the clear evidence of the psychologist that the mother does not show sufficient insight into her problem. In my view, this may well be connected with her compliance problems because, if she does not understand the seriousness of her problem, she is unlikely to be willing to change.
The mother had stopped seeing the psychiatrist in August 2008 (i.e. ten months before the hearing), but even during the period when she was seeing him there were occasions when she either missed appointments, or had been late or intoxicated when she arrived. That can hardly give the Court confidence about her willingness to change the direction of her life. (However, it should be said that during the hearing the mother did express a willingness to start seeing the psychiatrist again.)
Unfortunately, the mother’s difficulties are further complicated by her continued use of benzodiazepines. The psychiatrist was asked what his attitude was to the mother being his patient again and his response was:
I would not be unwilling to attempt to help again but there are very real difficulties to it. One of those difficulties is the dependency on nitrazepam. Although it’s prescribed as a sleeping tablet, it’s very long-acting and it remains in the body for anywhere between about 12 and 24 hours and it produces effects which work against therapy. Any form of useful therapy, from a psychological sense, relies on some form of new learning and habituation to continuous use of a benzodiazepine impairs short-term memory and impairs the capacity to undertake new learning. So there’s a real impediment to doing something useful there.
The psychiatrist was also asked whether it would have been part of his treatment of her to “wean her” off benzodiazepines, if she had maintained her appointments with him. His response was:
That was the intention but it requires a degree of engagement on the part of the patient, to undertake to do that. The problem about it is that it’s a bit like stopping alcohol. These drugs are so readily available that it’s not possible to –for a single practitioner to control what a person uses in that respect. So (the patients) have got to be honest with themselves and have a resolution that this is something that has got to be done and then to follow that systematically. And if that can be achieved it’s still very difficult.
In her affidavit under the heading "medication" the mother said:
I also use 25 mg of antidepressant and in conjunction with my doctor, the dose of antidepressant is gradually being reduced.
When she was questioning the psychiatrist the mother had indicated that her antidepressant was Sertraline and in his oral evidence to the psychiatrist said:
As (the mother) remarked, she’s taking 25 mg, which is a sub-therapeutic dose. Antidepressants work in an all or nothing way, there’s not a graded response where a small amount does a small amount and a big amount does a big amount. You have to be above a certain level individual to the patient before it works at all.
When he was asked what he meant by a “sub-therapeutic dose”, the psychiatrist responded: “Below the effective dose. Not worth taking.” and added that it only benefits the manufacturer and the chemist.
In general, the evidence of the psychologist and the psychiatrist was consistent. However, they appeared to differ on one issue, that being the psychologist’s recommendation that there should be random alcohol screening of the mother, which of the psychiatrist described as “a blunt instrument”. As I understand his evidence, he was of the view that urine testing for alcohol is somewhat “hit and miss” because alcohol only stays in the system for a relatively short time. I accept his medical expertise in relation to that.
The section 60CC considerations
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case. Indeed, I am fortified in that view by the Judgment of May and Thackray JJ in Mulvany & Lane,[11] in which their Honours said:
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
[11] (2009) FLC 93-404
Primary considerations
The benefit to the child of having meaningful relationships with both parents
It is clear that this consideration has in mind one of the objects of Part VII of the Act, that is to ensure that the child has the benefit of both parents having a meaningful involvement in the child’s life, to the maximum extent consistent with the best interests of the child.[12] However, it is also clear that this consideration is often in direct conflict with the consideration referred to immediately below.
[12] See section 60B(1)(a)
There does not appear to be any suggestion by either party that the child should have anything other than a meaningful relationship with both parents. However, it is the father's view that the child would be placed at unacceptable risk if the mother was simply allowed to have unsupervised time with child.
The need to protect the child from harm from abuse, neglect or family violence
I do not believe that the mother would deliberately harm her child. However, I must be concerned about the potential for neglect of the child if the mother does not do something to reduce her abuse of alcohol and her dependence upon nitrazepam.
The evidence from the father, his witnesses, the psychiatrist and the psychologist is overwhelming that the mother is unable, or simply unwilling to responsibly regulate her alcohol consumption.
In addition, as I understand the evidence of the psychiatrist, the mother's habituation to nitrazepam is very likely to be at the heart of her difficulties. In this regard, I refer to what the psychiatrist said as quoted at paragraph 34 above. Further, the pharmacological literature to which I referred (and much is available on the Internet), states that alcohol consumption should be restricted when one is taking nitrazepam.
It is clear that the mother regularly consumes alcohol to the point of being highly intoxicated, and at those times it would simply be dangerous for the child for the mother to be left in charge of him.
Relevant additional considerations
The child’s views
Given that the child is only three years old, this consideration is not relevant.
The child’s relationships with the parents and other people
The psychologist reported as follows:
It was observed that (the child) has a strong emotional bond with both of his parents. (The child) displayed spontaneous affection towards both his parents and he frequently sought out their attention. Both parents were observed to interact appropriately with (the child) and appeared to be sensitive to his needs.
I therefore accept that the child has warm and loving relationships with each of his parents
The willingness and ability of the parents to facilitate and encourage the child’s relationships with the other parent
It seems clear to me from the evidence that both parties recognise the importance of the other in the child's life. In relation to the father, the psychologist stated:
(The father) appears to be motivated for (the child) to maintain a close relationship with (the mother), although he has genuine concerns in relation to (the mother)’s ability to consistently provide for (the child)’s care and safety at this point in time. I gained the impression that (the father) will continue to facilitate and encourage the relationship between (the mother) and (the child), and that he will be more supportive of extended and unsupervised contact once (the mother) has demonstrated that her substance use and mental health concerns are being effectively managed.
In relation to the mother, she said:
(The mother) spoke about (the father) being a good father to (the child) and indicated strongly that she wishes for (the father) to continue being an important part of (the child)’s life. I believe that at present, (the mother) is so concerned by the possibility of not having (the child) returned to her care that she is likely to attempt to discredit (the father) in order to increase the likelihood of her being viewed as the more favourable parent. Despite this, I gained the impression that (the mother) is motivated to facilitate and encourage a close and continuing relationship between (the father) and (the child).
Notwithstanding the significant difficulties that are presented in this matter, I am confident that each of the parties will continue to facilitate and encourage the child's relationship with the other.
The likely effect of any change in the child’s circumstances
It is quite clear that the mother wishes to become the full-time carer for the child and that would be a significant change in the child's life because his mother has not been involved in his full-time care since May 2008. Further, such a change would put the child at risk for the reasons set out above.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
Both parties live in close proximity so there are no practical difficulties or expense involved in the child spending time with them.
The capacity of the parents to provide for the child’s needs
Because of the mother's difficulties with nitrazepam and alcohol, it is quite clear that her capacity to provide for the needs of the child (and in particular, the need to provide a safe environment) is significantly reduced. In this regard the psychologist reported:
In response to these questions, (the mother) clearly articulated the way in which she believed she had met (the child)’s nutritional, social, developmental, medical, psychological and physical needs. Although I was confident about (the mother)’s knowledge about what is important in meeting her child’s needs, I was concerned about (the mother)’s ability to put this knowledge into practice. Much of this concern relates to (the mother)’s alcohol use and unstable psychological health. Children who are exposed to the instability and potentially dangerous behaviour that often accompanies parental mental health concerns and drug and/or alcohol abuse may develop a range of psychological issues such as self- esteem problems, trust difficulties, problems with emotion regulation, as well as in knowing how to appropriately interact with other people. There is ample evidence that outlines the impact of parental mental health problems and parental substance abuse on parenting capacity.
While the father needs to rely upon full-time child care while he is at work for nine days of each fortnight, that is not unusual in today's society and I am satisfied that the father cares for the child very well indeed. Of him, the psychologist reported:
(The father) also appeared to have a good understanding and knowledge of what is required in meeting (the child)’s nutritional, social, developmental, medical, psychological and physical needs. I am confident in (the father)’s ability to put this knowledge into practice and I formed the view that he is consistently and effectively meeting (the child)’s needs.
The attitudes of the parents to the child and to parental responsibilities
I have no concerns at all about the father's attitude to his responsibilities to the child. He took legal action when he realised that the mother's behaviour was putting the child at risk and I share the psychologist’s view. She said:
(The father)’s overwhelming attitude towards caring for (the child) is one of commitment. I believe that (the father) places a great deal of pressure on himself in relation to his parenting responsibilities. (The father) appeared to be genuinely concerned about the impact past and current situations have had on (the child), and he presents as being highly committed to continuing to meet his parenting responsibilities in order to ensure that (the child) receives the highest possible level of care, love and safety. (The father)’s attitude towards parenting responsibilities is indicative of the love he clearly feels for (the child) and his desire to protect him from harm.
On the other hand, it is clear to me that the mother is not always able to put the child's needs first. The psychologist reported:
It is obvious that (the mother) loves her son, although I am concerned that at present, she is unable to effectively meet the responsibilities of parenthood. I was left with the impression that although (the mother) could probably meet some of the most basic needs of (the child), that is, clothing, shelter, supervision and food, she would benefit from learning about his psychological and developmental needs. For example, it is important for parents to recognise the dangers of exposing a child to substance abuse, psychological disorders that are not being effectively managed and parental conflict. I was concerned that (the mother) did not have a sufficient appreciation of these issues and as a result had exposed (the child) to situations that were entirely inappropriate.
Although the psychologist reported that the father had also been involved in inappropriate situations, such as conflict between himself and the mother when the child was present, she “gained the impression that he has a greater appreciation of the impact that these types of incidents can have on a child”.
Any family violence and family violence orders
It is clear that there have been violent altercations between the parties, but these have generally followed excessive alcohol consumption on the part of the mother. Further, the mother has breached family violence orders on occasions which resulted in her detention. However, I gained the impression that there had been no such difficulty for a number of months prior to the hearing so I hope that means that the mother has learnt some lessons the hard way.
Whether it is preferable to make an order that is least likely to lead to further litigation in relation to the child
During the hearing I queried whether the orders that I make should be interim or final. That was because I gained the impression that, although the father's counsel and the ICL were supportive of supervision of the mother's time the child (and both saw the contact service as a safe option), it was not practicable for that to continue in the long term. The father's counsel made it clear that he did not support the making of interim orders.
I do not have a crystal ball but I would hope that these proceedings and my Reasons for Judgment provide a very clear “wake-up call” to the mother that she needs to get her life in proper order if she wants to have a fulfilling and meaningful relationship with her son. In order to do that she needs to take control of her dependence upon nitrazepam and her consumption of alcohol. I do not believe that she will be able to do that without professional assistance, and I must admit to being heartened by the willingness that she expressed towards the end of the hearing to reinstate her therapeutic relationship with the psychiatrist. However, I do not know whether she has followed through with that expression of willingness.
However, while I am aware that it is normally desirable to put an end to litigation, I am of the view that I should only make interim orders at this time. Having said that, I would not expect the matter to be brought back before the court in less than twelve months, other than in urgent circumstances. I therefore intend to make only interim parenting orders in this matter.
Should there be equal shared parental responsibility?
Given that there has been violence in this matter I am of the view that the presumption of equal shared parental responsibility should not apply. Further, given the mother's dependence upon nitrazepam and abuse of alcohol, it is very clear to me that the father should have sole parental responsibility on an interim basis.
With whom should the child live, and what time should the child spend with the other parent?
Because of the mother's dependence upon nitrazepam and abuse of alcohol, it is quite clear that the child should continue to live with the father.
For the same reason, I would normally have made orders continuing the mother's time with the child at the contact service. However, the mother terminated the use of that service and expressed an unwillingness to continue its use. In my view, that is indeed unfortunate because all the reports from the contact service showed that her time with the child was enjoyable, and the father’s clear evidence was that the child enjoys going to the contact centre and “loves his mother and enjoys spending time with her”.
I have no doubt that it was in the child's best interests for their time together at the contact service to continue.
While I am hopeful that the mother may see some sense in reinstating the use of the contact service, I do not believe that it is appropriate to force her to do so as the only option available to her. I also note that the father believes that there may be other options available. Although the mother’s father was not a witness (and therefore could not be assessed by the Court), I note that the father stated that he has enormous respect for her father and he would be happy for the mother to spend such time with the child supervised by her father as he may agree to. (I also note that the father was putting that forward as an option to provide time in addition to that which the contact service could provide.)
I therefore have confidence that the father will promote and encourage the mother’s time with the child to the maximum extent that he considers is safe for the child.
As I have already determined that the father should have sole parental responsibility on an interim basis, it is my view that the father should also be responsible for determining how and when the mother should spend time with him, especially if the mother continues in her unwillingness to use the contact service. I have confidence that the father will make sure that the child is safe and that the child’s relationship with the mother continues.
Because I am only making interim orders at this time, which I expect to last for at least twelve months, it is appropriate for the ICL’s appointment to continue for at least that time. I would also expect the mother to keep the father and the ICL informed of what professional therapeutic assistance she elects to receive.
It is also appropriate to continue the restraints upon the mother that have been previously imposed.
I will make orders to provide for what is set out above.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Roberts FM
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