McVEIGH & PORTER
[2012] FMCAfam 178
•29 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McVEIGH & PORTER | [2012] FMCAfam 178 |
| FAMILY LAW – Children – parenting orders – best interests of the child – one child aged four years currently residing with mother – mental health issues – drug and alcohol issues – parental responsibility – equal shared parental responsibility – sole parental responsibility – whether child should live with father or with mother – whether child should spend equal time with each parent – supervision – whether time with child should be supervised – drug and alcohol issues – family violence issues – objects of Part VII of Family Law Act 1975 (Cth) considered – ensuring parents have a meaningful involvement in child’s life – protection of child from physical or psychological harm from being exposed to abuse, neglect or family violence – whether father has insight into mental health issues – whether father has insight into abuse of alcohol – where equal shared parental responsibility does not apply – where equal shared parental responsibility presumption rebutted as not in the child’s best interests – meaningful attachment to both parents. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CD, 60CE, 60CG, 61DA, 65AA, 65DAA, 68B, 68L |
| JG and BG (1994) 18 Fam LR 255; FLC 92-515 |
| Applicant: | MS MCVEIGH |
| First Respondent: | MR PORTER |
| Second Respondent: | INDEPENDENT CHILDREN'S LAWYER |
| File Number: | SYC 5574 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 15 & 16 March, 8 April 2011 |
| Date of Last Submission: | 8 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 29 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr O'Brien |
| Solicitors for the Applicant: | Sharee Cassel & Associates |
| Counsel for the first Respondent: | The Respondent appeared in person |
| Solicitors for the first Respondent: | No solicitor on the record |
| Counsel for the second Respondent: | Mr Ladopoulos |
| Solicitors for the second Respondent: | Legal Aid NSW Fairfield |
ORDERS
All earlier previous parenting Orders are discharged.
The Applicant Mother is to have sole parental responsibility for the child X born (omitted) 2007.
The Mother must inform the Father of all major decisions relating to the care, welfare and development of the child X, including decisions relating to the education of the child and medical issues including hospitalisation and specialist medical treatment.
The child X is to live with the Applicant Mother.
It is a condition of Order (4) above that the Mother must not administer to herself any prohibited drug at any time when the child X is in her care or for three (3) hours before any time that the child comes into her care.
It is also a condition of Order (4) above that the Mother must submit to urinalysis for the purpose of drug screen testing to determine the presence of any illicit non-prescribed drug in her bloodstream at such times as the Independent Children’s Lawyer shall direct on no fewer than three (3) occasions prior to 30 November 2012.
It is also a condition of Order (4) above that the Mother must not consume alcohol to the point of intoxication at any time when the child X is in her care or drive a motor vehicle in which the child is a passenger at any time when she is affected by alcohol.
UNTIL FURTHER ORDER
The child X is to spend time with the Respondent Father for two (2) sessions of up to two (2) hours per week at the (omitted) Family Support Service or such other agency as the Independent Children’s Lawyer shall arrange such time to be supervised by the officers of such service or agency at such times as shall be arranged by them and the parties and the Father shall be responsible for any costs associated with such supervision.
It is a condition of the above Order that the Father must not consume any alcohol at any time when he is in the presence of the child or for twelve (12) hours beforehand.
The Independent Children’s Lawyer is to arrange for the Father to consult with a drug and alcohol counsellor to address the question of his consumption of alcohol and the Father must attend such counselling as he may be directed.
The Father must continue to attend upon a medical practitioner for the purpose of addressing his mental health issues and produce to the Independent Children’s Lawyer a written assessment from the medical practitioner setting out his compliance with treatment and a prognosis by 30 November 2012.
The appointment of the Independent Children’s Lawyer to represent the interests of the child X under the provisions of s.68L of the Family Law Act 1975 is extended to 28 December 2012.
The Independent Children’s Lawyer is granted liberty to apply in respect of any of these Orders on three (3) days’ notice.
The Application is adjourned to 17 December 2012 for further mention at 10:00am.
IT IS NOTED that publication of this judgment under the pseudonym McVeigh & Porter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5574 of 2009
| MS MCVEIGH |
Applicant
And
| MR PORTER |
First Respondent
| INDEPENDENT CHILDREN'S LAWYER |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting orders by the Mother of a little girl named X, who was born on (omitted) 2007. X is now four years old.
The Father, who is the Respondent, opposes the orders sought by the Mother.
Orders Sought
The Mother seeks orders as set out in her Amended Application filed on 14th March 2011. The orders sought are that:
a)The child X born (omitted) 2007 live with the Mother;
b)The Mother to have sole parental responsibility for the child;
c)The Mother to have responsibility for decisions as to the child’s day to day care, welfare and development during periods when the child is living or spending time with her;[1]
[1] This order would appear to be unnecessary if the mother is to have sole parental responsibility for the child
d)The child to spend supervised time with the Father as follows:
i)On Tuesday from 4:00pm to 6:00pm; and
ii)On Thursday from 4:00pm to 6:00pm.
at the (omitted) Family Support Service supervised by officers of such service and the Father shall be responsible for any costs associated with same;
e)Each party shall advise the other party and keep the other party advised of his or her current address, one nominated contact telephone number and email address – to include notification of who will cohabit or reside with the notifying party and advise the other party of any changes to these details within 24 hours of such change occurring;
f)That during any period referred to in these Orders, in the event of the child being hospitalized or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital;
g)That each party shall ensure that they do not denigrate the other party and shall take all reasonable actions to ensure no other person denigrates the other party in the presence of that party, in the presence of the child, or at all;
h)Each party is hereby restrained from discussion of contentious parenting issues which arise between the parties, including any legal proceedings, with or in the presence of the child;
i)That the parties shall use a communication book which shall travel with the child during changeover.
The Mother had originally sought a number of injunctive orders against the father under s.68B of the Family Law Act, but her counsel informed the Court on the first hearing day that those orders were not pressed.
Similarly, the Mother had also in her Amended Application sought an order permitting her to remove the child from the Commonwealth of Australia without the consent of the Father and an order permitting her to obtain an Australian passport for the child, again without the consent of the Father. Again, her counsel told the Court that these orders were not pressed.
The Father had sought entirely different orders in his Response to the Mother’s original Application, which was filed by his then solicitors on 15th October 2009.
The orders sought in that Response were:
a)That the Respondent Father have sole parental responsibility for the child X;
b)That the child live with the Respondent Father;
c)That the child spend time with the Applicant Mother as follows:
i)From 12 noon Friday until 5:00pm Saturday;
ii)On Monday from 10:00am to 5:00pm; and
iii)On Wednesday from 10:00am to 5:00pm.
d)That the time to be spent by the Applicant Mother with the child is to be subject to and conditional upon:
i)The Mother not consuming, using or otherwise being affected by drugs or alcohol when the child is in her care;
ii)Such time occurring in the presence of and supervised by Ms L, the aunt of the Applicant Mother;
iii)The Applicant Mother undertaking supervised urinalysis testing in respect to both drugs and alcohol on not less than one occasion per month such testing to occur within 48 hours of notification by the Respondent Father (that) he requires such testing to be undertaken and provision of such Certificate pursuant to such testing within 72 hours of such testing occurring to the Respondent Father;
iv)That it be a condition that at commencement of time pursuant to the above order shall not start until the Applicant Mother has provided a supervised Urinalysis Testing certificate to the Respondent Father.
e)That the Applicant Mother be and is hereby restrained from consuming or using alcohol, drugs or any non-prescribed medication or being affected by the same whilst the subject child is in her care;
f)That for the purpose of the Applicant Mother spending time pursuant to the above order the Respondent Father shall deliver the child at commencement of such periods and shall collect the child from the same location at conclusion of the same;
g)That when the Applicant Mother is spending time with the child pursuant to the above order the child shall sleep at the residence of Ms L;
h)That upon the Applicant Mother providing six (6) consecutive clear supervised urinalysis testing certificates then the orders (for urinalysis) are discharged; and
i)That the Applicant Mother pay the costs of and incidental to these proceedings of the Respondent Father on an indemnity basis.
On the first day of the final hearing the Father indicated that his position had changed and that he now sought a shared care arrangement, whereby the child would spend time with each parent on a week about basis, from Sunday to Sunday in each week.
The Independent Children’s Lawyer has submitted that the orders to be made should effectively continue the earlier interim orders for a further period of twelve months. The orders sought include:
a)That the Mother have sole parental responsibility for the child;
b)That the child should continue to live with the Mother;
c)That the Mother should keep the Father informed about major decisions affecting the child’s care, welfare and development;
d)The interim orders made on 20th January 2011 were that the child was to spend time with the Father for two days a week for a period of one hour each time, supervised by the (omitted) Family Support Service at the Father’s expense, and it is submitted that those orders should be continued;
e)It was also ordered that the Mother undertake urinalysis for the purpose of testing for illicit drugs within 48 hours of a written request by the Independent Children’s Lawyer;
f)The Independent Children’s Lawyer submitted that these arrangements should remain in force for a period of twelve months, after which time the Father should provide an assessment report from his treating psychiatrist;
g)Upon the production of an assessment by the Father’s treating psychiatrist the Father should make a further application for orders that he should spend time with the child;
h)The Independent Children’s Lawyer submitted that the appointment of the Independent Children’s Lawyer should be continued for a further period of twelve months.
Background
A comprehensive chronology is set out in the Outline of Case Document prepared by counsel for the Independent Children’s Lawyer, Mr Ladopoulos. It is not reproduced in full, but it provides a useful guide to the history of this matter and the issues involved.
The Father was born on (omitted) 1975. He is now 36 years old.
The Mother was born on (omitted) 1975. She is now 36 years old.
The Mother married a man named Mr J in about 1998. There is one child of that marriage, Y, who was born on (omitted) 2000. The parties separated in 2002.
The child Y remained living with the Mother.
The Respondent Father commenced a history of psychiatric illness on 21st March 2001, when he attempted to hang himself and was admitted to (omitted) Hospital.
On 10th December 2001 the Father attended at (omitted) House, a mental health clinic at (omitted) Hospital, reporting a three month history of suicidal tendencies.
On 22nd October 2003 the Father attended at the Emergency Department of (omitted) Hospital after having cut his left wrist with a razor.
On 16th November 2005 the Father was convicted of driving with the mid range prescribed content of alcohol in his bloodstream.
In about 2006 the Father attempted to hang himself and was admitted to (omitted) hospital overnight. He subsequently attended the (omitted) Mental Health Service.
That same year the Mother was convicted of driving with the mid range prescribed content of alcohol in her bloodstream and lost her driver’s licence.
The Mother alleges that on 11th May 2006 the Father attended at her home and kicked in the front door.
On 16th August 2006 the Father was taken by the Police to the Emergency Department of (omitted) Hospital after twice attempting to hang himself and once attempting to stab himself.
On 1st January 2007 the parties commenced to live together.
The parties’ child X was born on (omitted) 2007.
The Mother alleges that the Father returned to live at his parents’ home in November 2008 but came back and forth until May 2009.
On 4th November 2008 the Mother reported to the Police an assault by the Father, which led to a Provisional Ex parte Apprehended Violence Order being made against the Father.
The Father alleges the parties resumed living together about 25th December 2008 and separated on 1st January 2009.
The Father claims that the Mother refused to allow him to spend time with the child X in February and March 2009.
On 17th April 2009 the Father was convicted of a number of offences of violence at (omitted) Local Court. A final Apprehended Violence Order was made against the Father for a period of two years.
An incident occurred on 19th May 2009 when the Father and his father attended at the child care centre to collect the child. The Father claims that the Mother assaulted both him and the paternal grandfather. The Father left with the child X and retained her in his care. The Mother was charged with two counts of common assault.
On 23rd June 2009 the Mother pleaded guilty to both charges of common assault at (omitted) Local Court and was placed on a Good Behaviour Bond for a period of 12 months. The Mother was also subjected to final Apprehended Violence Orders for a period of two years.
The child remained in the care of the Father. On 25th June 2009 the parties attended a Legal Aid Conference to discuss arrangements for the child but no agreement was reached.
On 16th September 2009 the Mother commenced proceedings in this Court seeking orders that the child X should live with her and that she should have sole parental responsibility for the child. The Application was returnable on 27th October 2009.
The Father, through his then solicitors, Dignan & Hanrahan, filed a Response on 15th October 2009, seeking that the child should remain living with him and that he should have sole parental responsibility for her.
When the Application came before the Court on 27th October 2009, Lindsay FM ordered that the Mother should provide a urine sample for drug screen testing.
On 5th November 2009 his Honour ordered that:
a)An Independent Children’s Lawyer should be appointed;
b)The child should live with the Father from 2:00pm on Saturday until 6:00pm on Sunday and with the Mother at all other times;
c)The Father was ordered to deliver the child to (omitted) Police Station by 4:00pm that day;
d)All changeovers were to take place at (omitted) Police Station;
e)The Mother was to attend fortnightly urine tests to determine the presence of illegal drugs; and
f)The Application was adjourned to 21st December 2009.
On 12th November 2009 the Father attempted suicide by electrocuting himself.
On 21st December 2009 the Application was listed for final hearing from 19th to 21st July 2010.
On 9th January 2010 the Father was brought by the Police to the Emergency Department of (omitted) Hospital with suicidal feelings.
On 12th May 2010 Orders were made by consent appointing Dr W, a psychiatrist, as the Single Expert Witness for the purpose of preparing a Report.
The Father applied for an adjournment of the final hearing on the basis that his application for a grant of legal aid had been refused by Legal Aid NSW. On 20th July 2010 the application for an adjournment of the hearing was granted and the proceedings were adjourned to 9th September 2010 for further mention, to abide the result of the Father’s appeal to the Legal Aid Review Committee.
On 9th September 2010 the application was listed for final hearing from 15th to 17th March 2011.
On 30th September 2010 the Father filed a Contravention Application, claiming several breaches of the Orders.
On 21st December 2010 the Mother filed an Application in a Case, seeking to vary the Orders of 5th November 2009 by reducing the amount of time the Father was to spend with the child and providing that the Father’s time should be supervised by the (omitted) Family Support Service.
On 20th January 2011 Walker FM dismissed the Father’s Contravention Application. Her Honour also made Interim Orders varying the earlier Orders so as to provide that:
a)The Mother was to have sole parental responsibility for the child X;
b)The child was to live with the Mother;
c)The child was to spend time with the Father two days a week for a period of one hour. The time was to be spent at the (omitted) Family Support Service and was to be supervised by officers of that service at the Father’s expense;
d)The Mother was to undertake supervised urinalysis for the purpose of testing for illicit drugs within 48 hours of a written request by the Independent Children’s Lawyer; and
e)The results of the testing were to be forwarded to the Independent Children’s Lawyer, who would forward a copy to the Father.
The Mother alleges that three different incidents occurred in February 2011. On 1st February the Police attended at her home following a telephone call from the Father. The following day the paternal grandmother left a bicycle for the child at the Mother’s home. On 8th February the Father arrived at her home and sat and read a book with the child. The Mother telephoned the police.
The Application proceeded to final hearing on 15th and 16th March 2011. The proceedings were adjourned to 8th April 2011 for further hearing.
Issues
The Mother has a history of drug and alcohol abuse. The Father has a history of alcohol abuse. He also has a history of mental illness, which has led to his hospitalisation. There have been several incidents where he has attempted to harm himself.
The safety of the child in the care of each of her parents is a serious issue.
Evidence
The Applicant Mother relied on her affidavits of:
a)16th September 2009;
b)16th July 2010;
c)20th December 2010, relating to the contravention proceedings and the Application in a Case to vary the Interim Orders; and
d)1st March 2011.
The Mother gave oral evidence and was cross-examined by counsel for the Independent Children’s Lawyer, Mr Ladopoulos, and by the Father, who appeared for himself.
The Mother said she disagreed with the Father’s shared care proposal. She conceded that the child loved her father and liked spending time with him. She also stated that it was important for the child to have a close relationship with her father.
The Mother conceded that she had used illicit drugs in the past but denied that she had had a drug problem. She said that she had not had any marijuana since she commenced the current proceedings.
The Mother also conceded that she had consumed alcohol in excessive quantities but denied that it was inappropriate. She said her worst time for drinking was when she was with the Father. She likes to have a drink when watching football.
It was the Mother’s evidence that she was not currently in a relationship and was not intending to be in another relationship. She accepted that her being in an abusive relationship was not in her children’s best interests.
The Mother said her proposal was that the Father’s time with the child should be supervised. She considered that supervision needed to be for some considerable time in the future, possibly for up to seven years because of the child’s young age and the Father’s current state of mind and his suicide attempts.
At one stage during the Mother’s evidence, the Father made gestures towards her in the witness box, which led to a warning from the Bench about his behaviour in Court.
The Father relied on his affidavits of:
a)13th October 2009;
b)29th October 2009;
c)30th October 2010; and
d)17th January 2011.
The Father was cross-examined by counsel for the Mother, Mr O’Brien, and counsel for the Independent Children’s Lawyer.
The Father denied various episodes of behaviour which led to his involvement with the police but said that he had been “in a couple of fights”. He denied that violence was a part of his life. He did, however, agree that he had made suicide attempts on occasion. In particular, he said that he had attempted to electrocute himself after he had received a copy of the Orders made by Lindsay FM in November 2009.
The Father said that he had various admissions to psychiatric institutions, including the (omitted) Mental Health unit and (omitted) house. However, he firmly stated:
“I still, to this day, say there’s nothing wrong with me mentally. It’s a stress disorder caused by a system that seems to favour one side and not the other.”[2]
[2] Transcript 15.3.2011 page 70 lines 20-21.
He emphatically said:
I do not have a mental illness. I still stand by that. I take their drugs because they ask me to.[3]
[3] Transcript 15.3.2011 page 72 lines 31-32
The Father’s evidence continued into the second day. He affirmed that he now sought a week-about shared care arrangement. He plans to live with his mother in any event.
The Independent Children’s Lawyer called the paternal grandmother to give oral evidence. She had not sworn an affidavit in the proceedings.
Mrs Porter’s evidence was that the last time she had seen the child X was in October the previous year. Prior to that she saw the child regularly.
Mrs Porter said that earlier in the year her son had been admitted to (omitted) house at (omitted) for mental health reasons. He had stayed there for about a week over Christmas. She had been concerned about his emotional state for some time and had gone with him to the (omitted) clinic to obtain some assistance for him.
Mrs Porter said that she had never been frightened of the Father but frightened of what he might do to himself.
The maternal grandmother spoke about supervised time between the Father and X:
I think it needs to also note that if it’s to be say four hours a week, two hours here and two hours there, that’s a cost of $220. It’s $55 an hour. I went twice when X was dropped off at the supervised access place…And I think it’s just horrible to put a father and child in a room that’s locked the way it is. It’s just unnatural and not normal. There’s basically no interaction at all. You’re just sitting there in a tiny little bedroom sized room.[4]
[4] Transcript 16.3.2011 page 127 at 40-47
Mr Ladopoulos asked Mrs Porter whether she saw herself as somebody who was willing and able to supervise the Father’s time with the child. She said that she was “basically not willing” and something that she “would have to think about greatly”.[5]
[5] Transcript 16.3.2011 page 128 at 13 and 20
Mrs Porter said that she had never had any concerns about her son with X. She had seen him aggressive with other people but never with the child.
The Single Expert Report
Dr W, a consultant child psychiatrist, prepared a Report dated 9th June 2010 which was released to the parties on 17th June. He prepared a further report on 22nd September 2010 at the request of the Independent Children’s Lawyer.
Dr W gave oral evidence by telephone on 8th April 2011.
For the purpose of the preparation of his report, Dr W interviewed the following people:
a)The Mother, alone and with her children X and Y; and
b)The Father, alone and with the child X.
He also read documents produced under subpoena from:
i)NSW Ambulance Service;
ii)NSW Police;
iii)NSW Department of Community Services;
iv)(omitted) Centre;
v)(omitted) Hospital;
vi)(omitted) Mental Health;
vii)(omitted) Child Health Centre;
viii)(omitted) Psychological Centre Pty Ltd;
ix)(omitted) Centre; and
x)Teach and Play Pty Ltd.
There was no objection to Dr W's report being admitted into evidence.
In his Report, Dr W noted the following issues between the parties:
Each parent accuses the other of dependence on addictive substances, the mother accusing the father of being addicted primarily to alcohol and the father accusing the mother of being primarily addicted to marijuana, although she periodically drinks very heavily. Each also accuses the other of neglect of X as a result of this addiction, and also that she has been exposed to domestic violence initiated by the other party.[6]
[6] Report page 2
Dr W set out in some detail the account given by the Mother about her relationships with Mr J., the Father of her child Y, and also with Mr Porter., the Father of X. In each case, the Mother said that the relationship was abusive and marked by aggression and violence.
The Mother also told Dr W about her extensive use of marijuana since she was a teenager. She said that she had ceased using marijuana in July 2009.
The Mother spoke of her drinking, saying that:
…she likes to have a scotch when she is watching the football, but otherwise she does not drink. She indicated that this would only be a Friday, Saturday or Sunday. However she said that when she was with Mr P. she would drink with him…
…She denied that she had been too drunk to pick up X on May 19th. She was adamant that she had only …five partial glasses of wine at an event at lunchtime. However she felt that she had been set up by Mr Porter..[7]
[7] Report page 10
The Mother told Dr W that she was seeing a drug and alcohol counsellor from the (omitted) and Alcohol Service from about the time that the child was taken from her until December 2009.
Dr W described the mother as “very cooperative” with the assessment and said:
She expressed a lot of bitterness towards Mr Porter. and blamed him for a lot of the problems in the relationship and with the children. She was alert and apart from an anxious, eager manner, there was not evidence of emotional or behavioural disturbance.[8]
[8] Report page 14
Dr W set out in some detail the history of the Father’s involvement with the Police from 1994 on, for offences of violence and driving whilst there was in his bloodstream the mid range prescribed concentration of alcohol.
Mr P.orter told Dr W about his history of suicide attempts when he had been drinking heavily. He also said that he had had periods of depression. Disturbingly, Dr W noted that:
Again it was difficult to get him to elaborate on these in any detail. He either digressed onto another subject or started to talk about how Ms McVeigh was responsible for the way he was feeling.[9]
[9] Report page 17
Whilst the Father conceded that use of alcohol had been a part of his life for many years, he told Dr W that he had concerns about the Mother’s drug and alcohol use, which he believed made her neglectful of X and also prone to aggression. The Father said that he does not drink at all when the child has been with him.
Dr W observed the interaction of X with the Father, noting that she was “quite happy” to see him and “greeted him eagerly and affectionately”.[10] The Father played with the child while she played with a dolls house and a small set of dolls. He was observed to participate but not direct her play. Dr W described him as “patient and attentive” with X, who was “quite affectionate with her father and showed no evidence of any avoidance”.[11]
[10] Report page 22
[11] Report page 23
Dr W expressed the view that X’s primary attachment was to her mother but she had quite a strong attachment to her father.
Dr W raised serious concerns about the Father’s behaviour when intoxicated:
The most clearly documented and concerning threat to Mr Porter.’s capacity is his behaviour when intoxicated, which probably can be quite often. The history he has given of his drinking has been variable, at times alleging quite large volumes on virtually a daily basis and at other times playing this down (usually when his behaviour has been the focus of attention by various authorities). When he is drunk, he clearly can be very irritable and aggressive as well as moody and he has made a number of attempts at self harm. It did not appear to me that he has a great deal of insight into this because he has never really engaged in therapy. As a result one cannot have any confidence that he can regulate this behaviour or behave in an appropriate protective way in the long term, particularly if he is living by himself.[12]
[12] Report page 30
Dr W formed the view that the Father has “a very significant alcohol abuse problem which has been associated with significant self harm as well as threats towards others and other impulsive and inappropriate behaviour”.[13] His alcohol problems would significantly impair his parenting ability, leading to a concern that the child could be caught up in any of the inappropriate behaviours he has shown whilst heavily intoxicated.
[13] Report page 31
Dr W expressed a concern about the Father having X without a sober, mature and reliable adult also being in the home.
As to the Mother, Dr W referred to her significant history of marijuana use, fluctuating depressive symptoms, and her periodic alcohol use, which may have contributed to her capacity to be “quite a volatile person”.[14]
[14] Report page 32
Dr W described the Mother as:
…probably a rather emotionally vulnerable person …(who) has difficulties extricating herself from violent relationships.[15]
[15] Ibid
The Mother’s parenting capacities were likely to be influenced by her drug and alcohol use and general emotional state.
Dr W prepared a second report on 22nd September 2010, at the request of the Independent Children’s Lawyer. The Father had attended the (omitted) Mental Health Service on 26th and 27th July 2010 seeking treatment. His mother reported that he had been very irrational in his behaviour for more than nine months and she was very fearful about his mental state:
He had also been previously prescribed psychiatric medication which he was not taking and he did not think that there was anything mentally wrong with him.[16]
[16] Report 22.9.2010 page 2
The Father was admitted to the (omitted) Psychiatric Hospital on 28th July 2010 with a diagnosis of mania (Bipolar Disorder) and a differential diagnosis of Schizophrenia. According to Dr W’s reading of the subpoenaed material, the Father was transferred to the open ward at (omitted) on 20th August after an admission of more than three weeks:
It was also noted that he had been in the observation (closed) unit because of his difficult and aggressive behaviour.[17]
[17] Ibid
He was granted weekend leave and an application was made for a Community Treatment order.
Dr W expressed a concern from this material about the Father’s capacity to look after X, leading to a view that he would need another adult in the house to assist with limiting his alcohol intake, maintaining appropriate routines and ensuring the child’s safety.
Dr W’s opinion, based on the material put before him was plain:
This material underscores my concerns about X’s wellbeing in his care. Subject to clear evidence that his paranoid frame of mind has subsided, that he is compliant with treatment, and that he is abstaining from alcohol intake, I would strongly recommend that his time with X be curtailed immediately. If one of his parents were prepared to accompany him, then some day time could be continued, and if he was prepared to move back in with one of his parents, then it may be safe for X to stay overnight.
These additional materials also suggest that Mr Porter.’s mental state has been in a gradual decline for some time, possibly due more to a primary psychiatric illness such as Schizophrenia or Schizo-affective Disorder than as a consequence of his heavy drinking, although it is possible that chronic alcoholism can produce a rather similar picture, particularly if it is complicated by drug use. In his case, his mental state has been associated with irritable, paranoid and irrational behaviour and in the context of a recent lengthy admission to hospital, great co0ncerns must be held about X’s wellbeing in his unsupervised care.[18]
[18] Report 22.9.2010 page 3
Dr W gave evidence by telephone on 8th April 2011. He maintained his view that he had greater concerns about X spending time with her father than he had previously. He noted that the Father had been on a Community Treatment Order since 17th January 2011 and was taking Risperdal (risperidone),[19] both by injection and orally at night.
[19] A medication prescribed for bipolar disorder, schizophrenia or irritability due to autism
Dr W said that the Father had developed Schizo-affective psychosis, but he does not have much insight into his need for treatment. He went on to say that if the Father were paranoid towards the police or the Mother in particular, that could create “all sorts of situations” for his daughter.
The Father would need a reasonably lengthy period of stability before his contact with his daughter could be unsupervised, at least six to twelve months in his view.
However, supervised time with the child could commence almost immediately at a professionally supervised centre. The supervision for the child’s safety needs to be external, as the child is far too young to monitor her father’s behaviour. Dr W told the Court that, if it were possible for a Contact Centre to arrange weekly visits, that would be good.
The Father was observed to be laughing during this part of the Doctor’s evidence, for no apparent reason.
Dr W said that the other problem for the Father remained his drinking. Alcohol had played a part as a self-medicating regime.
The Father asked some questions of Dr W by way of cross-examination, putting to him that he had not been an inpatient at (omitted) Hospital but (omitted). He said that he was on a Community Treatment Order and was taking Risperdal, putting to him that if there was no smoke there was no fire.
Dr W’s reply was that there was “smoke – drinking, aggressive behaviour, increasing mental illness.”
Submissions
Mr O’Brien of counsel, who appeared for the Mother, submitted that the Mother sought a restriction on the Father’s contact with the child, being on two days a week for two hours per session, at a supervised contact centre. In addition, the Mother sought sole parental responsibility for the child.
He submitted that both the Father and the Mother had had their difficulties. The Mother had issues with the use of marijuana and alcohol, but her marijuana use had ceased. Since attending counselling and various courses she had turned her life around.
The Mother was not seeking to cut the father off from all contact with his daughter. She accepted that it was to X’s benefit to have a long term and meaningful relationship with her father. However, the Father’s mental health had been deteriorating, leading to admissions to (omitted) House with diagnoses of Schizophrenia and bipolar Affective Disorder. Certainly, it was submitted that the Father suffers from a Schizo-Affective Disorder.
The Mother was not putting to the Court that the Father was a bad father or that he did not love his daughter. However the Father was not able at this time to offer a safe environment for his daughter. Consequently, the Mother supports Dr W’s recommendation that the Father’s time with his daughter should be supervised for the next twelve months.
Paragraph 60CC(2)(b) of the Family Law Act provides that the Court should consider the need to protect the child from physical or psychological harm. There is no evidence to date that the Father has harmed his daughter, but the concern is to ensure that no harm arises because of the Father’s mental state or abuse of alcohol.
Mr O’Brien submitted that at this stage it was not appropriate for X to have unsupervised time with her father. Further time between father and child needs to be eased in on a gradual basis.
Counsel for the Independent Children’s Lawyer, Mr Ladopoulos, submitted that whilst there had been concerns in the past about the Mother, due to her drug and alcohol use, the Mother had got over these problems. There were no concerns about the child’s safety in the care of the Mother.
The Independent Children’s Lawyer supports the Mother’s claim that she should have sole parental responsibility for the child. There is not a sufficient level of communication for equal shared parental responsibility to be considered. However, an order would need to be made that the Mother should keep the Father informed about major decisions relating to the child’s care, welfare and development.
The Independent Children’s Lawyer is not submitting that the child does not have a good relationship with her father or that he does not love his child. However, the Father’s mood or mental state could put the child at risk.
The concerns arise because of the Father’s long history of attempted self harm. He has a history of aggressive behaviour towards the police and towards the child’s mother. He has readily conceded that he has been involved in aggressive and drunken behaviour.
The Father does not deny that, when he was an inpatient at (omitted) House, he was given leave and returned to the hospital in a state of intoxication.
Accordingly, it is submitted that there is an unacceptable risk of harm to the child if her time with her father is not supervised by a responsible adult. The Father has a long history of non-compliance and stopping his prescribed medication. He has been placed on a Community Treatment Order, so he takes his medication because he is required to by the Community Treatment Order.
The Father’s mother would not agree to supervise the Father’s time with the child, saying in evidence that she felt she was “almost being blackmailed”. The Father has not put forward any other person to be a supervisor.
It was submitted that all that is left is professional supervision by a contact centre, either (omitted) Centre or such other agency as can be arranged. The Independent Children’s Lawyer supports Dr W’s suggestion that the Father should spend time with the child twice a week.
Mr Ladopoulos conceded that this was not a perfect solution and could not continue indefinitely. However, no other regime could be suggested, and this should continue for not less than twelve months.
The appointment of the Independent Children’s Lawyer should be continued for another twelve months. After twelve months, the Father could provide a psychiatric assessment report from his treating psychiatrist which would assist the Court in making further arrangements for the child to spend time with her father in safety.
The Father submitted to the Court that the lawyers (meaning the mother’s legal advisers and the Independent Children’s Lawyer and counsel) wanted the matter to continue “for ever and a day”. They “hold people to ransom” he submitted.
He said he has a treating psychiatrist who will not do reports.
The Father said that since he met the Mother he has had numerous dealings with the police. He said that she would throw a punch at him but if a man were to throw a punch back the Mother would go to the Police.
In the course of his submissions he conceded that the Mother should have sole parental responsibility, saying:
I would be happy to concede that Kim has sole responsibility, sole parental responsibility because she does try to do the right thing by her son, and I hope she does the same thing with X.[20]
[20] Transcript 8.4.2011 pages 189-190
The Father said that he had done the right thing, he had done nothing wrong and he just wanted to see his daughter. X is an honest decent child who needs the love of both parents. His role in life is to be a father.
The Father conceded that he and the Mother would “never see eye to eye”.
The Relevant Law
The objects of Part VII of the Family Law Act are set out in subsection 60B(1) of the Act:
The objects of this Part are to ensure that the best interests of children 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 withy 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.
The reasons for decision in this case have been prepared with those Objects firmly in mind.
Section 60CA of the Family Law Act requires the Court, in deciding whether to make a particular parenting Order, to regard the best interests of the child as the paramount consideration (see also section 65AA). In this case, as so often happens, the Court has made an order under s.68L of the Act that the interests of the child concerned be independently represented by a lawyer.
A Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC. I have done so in this case and I will refer to those matters which are relevant.
The Court will consider the views of the child concerned under paragraph 60CC(3)(a) where the child is of sufficient maturity for those views to be expressed. The child will not be required to express her views (s.60CE) and was not in this case, because of her young age. However, the Court may consider anything contained in a report given to the Court under subsection 62G or by considering the submissions of and any evidence led by the Independent Children’s Lawyer appointed under s.68L (see s. 60CD).
I am satisfied that the two Reports from Dr W, the Single Expert, are given to the Court under subsection 62G(2).
In considering what order to make, the Court must, consistently with the requirement that the child’s best interests are the paramount consideration, ensure that the order is consistent with any family violence order and, importantly, does not expose a person to an unacceptable risk of family violence (see s.60CG). This latter requirement applies, in my view, whether or not a family violence order is currently in existence.
Subsection 61DA(1) requires the Court, when making a parenting order to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence (s.61DA(2)) and it 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 (s.61DA(4)).
If the presumption of equal shared parental responsibility set out in subsection 61DA(1) does apply, then the Court is required by section 65DAA to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, failing that, whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
I have considered all of the above matters insofar as they are relevant.
Conclusions
In my view, the first matter to be considered is whether to apply the presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her.
The Mother seeks sole parental responsibility. The Father originally sought sole parental responsibility, but appeared to concede in his final submission that the Mother should have sole parental responsibility for X.
In my view, there are reasonable grounds to believe, from the uncontradicted evidence, that there has been family violence in the parties’ relationship, although not directed towards the child herself. Consequently, the presumption of equal shared parental responsibility does not apply.
Further, the evidence clearly shows that there is a poor level of communication between the parties. The Mother complains that the Father has been abusive to her, whilst the Father blames her for many of the troubles that have befallen him, particularly with his involvement with the police.
I am satisfied that it would not be in the best interests of the child X for her parents to have equal shared parental responsibility for her. Thus, the presumption is rebutted.
The evidence is that the Mother is the child’s primary caregiver, and has been since the orders made by this Court on 5th November 2009. Consequently, the Mother should have sole parental responsibility for the child. As suggested by the Independent Children’s Lawyer, the Mother should be required to inform the Father about all major decisions regarding the child’s care, welfare and development.
One question that arises is whether this order should be an interim order or a final order, noting that the Independent Children’s lawyer, with whom the Mother agrees, submits that:
a)the orders for the Father’s time with the child be supervised for a period of twelve months; and
b)the appointment of the Independent Children’s Lawyer should be continued for a further twelve months.
It is my considered view that the order for parental responsibility should be a final order. There is no evidence that would satisfy the
Court that the question of parental responsibility would require to be reconsidered over the next twelve months. What needs to be considered, if the evidence arises, is the Father’s time with the child. The degree of communication between the parties is highly unlikely to improve in the foreseeable future, and there should be some finality for this important issue.
The child X was born on (omitted) 2007. She will attain the age of five years on (omitted) this year, and a decision should be made about which school she should attend at the start of the 2013 school year. The parent with parental responsibility should make that decision in plenty of time, so that the child will have some certainty as to what school she will attend next year.
The best interests of the child X must be the paramount consideration, and they must be given more weight than the wishes or wants of either parent.
The primary considerations in s.60CC(2) of the Act are both particularly important in this matter.
Paragraph 60CC(2)(a) refers to:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
This, of course, is consistent with the objects of Part VII (see paragraph 60B(1)(a)).
Dr W observed that the Mother had been X’s primary caregiver and the child’s primary attachment was to her mother. She also has a strong attachment to her father. Dr W said of her at page 28 of his Single Expert Report of 9th June 2010:
Seeing her with both of her parents, it was evident that both of them are capable of being very focussed on her, being warm and loving, and also providing a fairly intellectually stimulating environment when they are in a clear frame of mind and not distracted. During the assessment, her attachment to both of her parents seemed to be quite secure.
I am satisfied that there is a benefit to the child in having a meaningful relationship with both of her parents.
The benefit to the child in having a meaningful attachment to both of her parents must be consistent with her best interests (s.60B(1)(a)). To this end, the Court needs to consider protecting her from harm, which is the other primary consideration.
Paragraph 60CC(2)(b) refers to:
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The objects of Part VII deal with this issue in paragraph 60B(1)(b) of the Act.
Dr W has raised the concern that both parents have significant emotional, behavioural and substance use problems which impair their parenting, more on the part of the father than the mother. He said at page 33 of his single Expert Report of 9th June 2010:
In my view this could lead to a degree of emotional neglect and even abuse. I would be particularly concerned that she would be exposed to violence or quite frightening incidents with her father if he is intoxicated and I am also concerned about his judgement even when he is sober because I am concerned that he might have sustained some mild brain damage from his drinking.
Whilst the Mother states that she has ceased using marijuana since July 2009, there needs to be some assurance that her abstinence from this drug continues. It is, of course, an illicit substance and a resumption of drug use could lead to her involvement with the criminal justice system.
It is of no benefit to the child to spend time with her mother if and when her mother is using marijuana or any other illicit drug. This can lead to neglect of the child. Consequently, the Mother must abstain from drug use at all times when the child is in her care or about to be in her care. The Mother should over the next few months submit to urinalysis to determine whether there is any trace of illicit drugs in her bloodstream. The times should be nominated by the Independent Children’s Lawyer, whose appointment will be continued until the end of the year.
There are fewer concerns about the Mother’s drinking, now that she is no longer in a relationship with the Father. This does not mean that she should engage in binge-drinking or drive whilst affected by alcohol, but it does mean that she should avoid drinking to excess whilst the child is in her care.
The Mother must certainly not drive a motor car with the child as a passenger when she is at all affected by alcohol. She has had one conviction in 2006 for driving with the Mid Range Prescribed content of Alcohol in her bloodstream and a further conviction would lead to a fine and a significant period of disqualification from driving, not to mention the obvious danger to the child of travelling in a car driven by someone whose driving ability is impaired by alcohol.
Dr W, both in his Single Expert Report of 9th June 2010 and his later Report of 22nd September 2010, expressed serious concerns about the Father’s mental state and his long history of alcohol abuse. It was the Father’s latest admission to hospital, described by Dr W as (omitted) but the Father says it was (omitted)[21] that led to the recommendation that the Father’s time with the child should be immediately curtailed, out of concern for the child’s wellbeing.
[21] It does not matter which mental hospital it was
The Father has a lengthy history of alcohol abuse. Whilst he has stated that he does not drink when in the presence of his child, there are still concerns about his ability to care for the child. Whilst intoxicated, the Father has made several attempts at self-harm. He has also displayed aggressive behaviour whilst intoxicated, particularly towards the Mother, which is not conducive to the child’s wellbeing if she were in the presence of the parties if this occurred.
In my view, the Father’s heavy drinking, into which he appears to lack insight, would be a sufficient reason of itself to require that his time with the child should be supervised. If the Father is to maintain a relationship with his child, he must, in my considered opinion, abstain from alcohol, at the very least when he is in the presence of the child or beforehand. Dr W has referred to the Father’s “chronic alcoholism”[22], and this is a matter to which the Father must give serious consideration.
[22] Report 22.9.2010 page 3
The Father should abstain from alcohol completely, and the Independent Children’s Lawyer should refer the Father to an appropriate agency so that he may obtain counselling and treatment.
It is also of great concern, greater even than the Father’s alcohol abuse, that the Father has had a history of psychiatric illness, into which he clearly lacks insight. Dr W has referred to the Father’s “irritable, paranoid and irrational behaviour”[23] and has noted the Father’s earlier diagnoses of Bipolar Disorder, Schizophrenia or a Schizo-Affective Disorder.
[23] Ibid
The Father constantly denies or explains away any suggestion of mental illness, and this was evident during the hearing. It was a matter of concern that the Father was warned by the Court on one occasion for making inappropriate gestures during the Mother’s evidence. On another occasion, the Father was observed to be laughing for no apparent reason during the evidence of Dr W.
Despite this, the Father has constantly maintained that there is nothing wrong with him and that he is only suffering from stress brought about by these proceedings. The Father’s history of treatment for mental illness and the fact of his being placed on a Community Treatment Order strongly indicates otherwise.
Until the Father comes to grips with the fact that he has suffered from mental illness, which is unlikely to happen whilst he continues to lack insight into his situation, it is not in the best interests of the child to remain in his care without supervision by another adult. She needs to be protected from harm, particularly psychological harm, from being exposed to his irrational, aggressive, or suicidal behaviour.
There are a number of additional considerations for the Court set out in subsection 60CC(3) of the Act. They are important.
X is too young to express a view which can be given any weight by the Court, as she is only four years and two months old. Nevertheless, there is evidence that she has affection for her father and an attachment to him.
X has a good relationship with both of her parents. She has a paternal grandmother, who has given evidence in these proceedings. The grandmother wishes to maintain her presence in the child’s life, although she was unwilling to commit to being nominated as a supervisor of the father’s time with the child. This should not be seen as a criticism of the grandmother, as it is clear that she has played a longstanding role in dealing with her son’s behaviour and has been instrumental in taking him to hospital for treatment when his symptoms have apparently worsened. Mrs Porter’s time with her son has obviously been difficult for her.
X has a half brother, Y, who lives with her and her mother. He was not present at the interviews conducted by Dr W. However, there is nothing to suggest that the child has other than a normal sibling relationship with her older half brother.
Despite her difficulty in communicating with the Father, the Mother accepts that X has a good relationship with him and intends that the relationship should continue. Her concern is for the child’s safety, noting the Father’s often irrational, aggressive or suicidal behaviour due to his mental health or drinking problems.
The Father has conceded that the mother should have sole parental responsibility and says that he just wishes to see his child. He appears to have tacitly abandoned his earlier proposal put to the Court on 15th March 2011 that the parties should share the care of the child on a week about basis.
The Father’s previous behaviour in May 2009, when he collected X from child care and would not hand her over to her mother because the Mother was under the influence of alcohol, does not assist the Court in reaching the view that he has, or had at that stage, a willingness to facilitate a close and continuing relationship between the child and the Mother.
It was the Father’s actions in retaining the child, without making arrangements for her to spend time with her mother, that led to the institution of these proceedings. I note that Lindsay FM ordered on 4th November 2009 that the child should be returned to the care of the Mother that day.
One might comment that the Father’s claim that the Mother was too intoxicated to care for the child in May 2009 seems rather ironic in light of the Father’s history of alcohol abuse and gives weight to his lack of insight into his drinking.
If there were to be a change in the child’s circumstances, involving the child living with the Father either permanently or on a week about basis, the effect on the child would be that she would be separated from her mother, who is her primary caregiver.
The child would also be separated from her half brother, Y.
The effect on the child would, to my mind, be distressing to the child and detrimental to her wellbeing, as I am satisfied that the evidence shows that the Father at this stage is unable to care for her due to his mental state and alcohol abuse.
Unless and until the Father addresses both of these issues, it would not be in the child’s best interests for her to spend other than short periods of supervised time with him.
There is no particular practical difficulty in the child spending time with the child, but the question of expense was raised by the child’s paternal grandmother. She said that each hour at the contact centre cost $55.00, so that two sessions each of two hours would amount to $220.00 per week. This is a significant expense, noting that the Father is not currently in employment.
Each parent’s capacity to provide for the needs of the child has been called into question in these proceedings. The Mother’s capacity has been affected by her drug use, which she says she has now ceased, and her alcohol consumption. She says that her alcohol consumption has reduced since her relationship with the Father ceased. The orders proposed in paragraphs 158 to 160 are designed to assist the Mother’s capacity to care for her child.
The Mother says that she is not currently in a relationship and happy not to be. Since her relationships with the Fathers of her two children were marked by violence, aggression and abuse, this would appear to be desirable. If the Mother is to form a new relationship, as she is entitled to do, she needs to choose a person who is not abusive.
The Father’s capacity to care for the child is affected by his mental health issues and his heavy drinking, into neither of which he has sufficient insight to take active steps to resolve. Whilst he continues to deny these issues, his parenting ability will be greatly compromised.
X is a little girl who was born on (omitted) 2007. She is four years and two months old. There are no particular cultural issues to consider.
The parents’ attitude to the child and to the responsibilities of parenthood has been affected by drug and alcohol issues on the part of the Mother and mental health and alcohol issues on the part of the father. The Mother has taken steps towards overcoming these issues, but the Court would wish to be assured that her drug use will not resume and that her alcohol use remains under control.
Family violence has been an issue throughout this matter. An Apprehended Violence Order was made against the Father at (omitted) Local Court on 7th April 2009 and remained in force for a period of two years. The Mother was the protected person.
There is no current Apprehended Violence Order against the Father relevant to these proceedings, if at all.
An Apprehended Violence Order was made against the Mother at (omitted) Local Court on 23rd June 2009. It remained in force for two years. The protected persons were the Father and his father.
There is no evidence of any current Apprehended Violence Order against the Mother.
It would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child. For this reason, I have decided that a final order should be made that provides that the Mother should have sole parental responsibility for the child.
For the same reason, I consider that a final order should be made that provides that the child X should live with the Mother. The evidence before the Court is such that the Father is not in a position, nor likely to be in a position in the foreseeable future, to have the child live with him. I am not persuaded that it is in the child’s best interests for her time with the Father to be unsupervised until there is a considerable improvement in his mental health and a significant reduction in his drinking, if not total abstinence.
The Mother has made efforts to care for the child and get her own life onto an even keel. The end of these proceedings will, one hopes, empower her to take a firm and positive role in bringing up her two children, with an assurance that she has the power to make the necessary decisions for their care, welfare and development, at least insofar as X is concerned. These proceedings are not about Y, but he cannot be ignored. He is part of X’s family.
What this leaves is the question of the amount of time that the Father can spend with his daughter. The evidence is clear that he loves her. She has an attachment to him and clearly cares for him. The time that she spends with her father must be free from violence, aggression and erratic behaviour.
It needs to be understood that family violence can adversely affect children’s welfare, even if it is not directed at them. As Chisholm J said in JG and BG[24]:
1. In proceedings relating to custody, guardianship and access, evidence of family violence is relevant insofar as it assists the court in determining what orders will best promote the welfare of the children.
2. The Court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children.
3. So far as the evidence allows, the court will attempt to understand the nature of any family violence that has occurred and its potential effect on the children.[25]
[24] (1994) 18 Fam LR 255; FLC 92-515
[25] (1994) FLC 92=515 at 81,319
The effect on a child of witnessing violence within the family will, without doubt, be psychological harmful and will have a negative effect on the child’s perception of the way adults relate with each other.
The proposals of the Mother and the Independent Children’s Lawyer do not offer a permanent solution. No doubt they will be distressing to the Father, who sees himself as having done nothing wrong. However, this child must be protected from harm, and the Father’s mental state and heavy drinking mean that there is unacceptable risk of harm to the child if she remains in his care without supervision by a responsible adult.
The Father has not offered any other person as a potential supervisor. His mother has criticised the facilities at the contact centre and has spoken of the cost, but what alternative is there? She is not prepared to supervise the Father’s time with the child. No other member of the Father’s family has come forward to offer themselves in that role, and the Father believes that supervision is unnecessary. The evidence strongly suggest otherwise.
It is up to the Father to develop some insight into his behaviour, if he can, to deal with his mental health problems and his heavy drinking. Ideally, he should abstain from alcohol totally, but he has shown no sign that he will do so or that he even understands that it may be necessary.
It has been a number of months since the evidence was heard and submissions taken, a delay partly occasioned by events beyond the control of the Court. No party has sought to re-open the proceedings in the meantime. It seems to be appropriate to allow a period of time until the end of the year, a period of ten months, for the current arrangements for the supervision of the Father’s time with the child to continue. Those orders will be orders until further order.
If the Father were able to provide evidence of:
a)efforts to overcome his heavy drinking; and
b)a recognition of his mental health issues and positive steps to undergo treatment,
the Court would more readily be able to consider proposals to increase the amount of time that he spends with his daughter.
Again, if the Father were to formulate a proposal for one or more responsible adults to supervise his time with his daughter, the Court would more readily be able to consider an arrangement that would allow him to spend more time with her.
However, the Father must accept that the responsibility falls on him. He cannot continue to blame the child’s mother for his inability to spend more time with his child. Until then, for the child’s own safety, the Father’s time with the child must be supervised by a contact centre.
I intend to extend the appointment of the Independent Children’s Lawyer until the end of the year.
I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 28 February 2012
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