MDB and JMO - [2005] FMCAfam 75

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MDB & JMO

[2005] FMCAfam 75

FAMILY LAW – Contact – where father has not had contact for three years – drug and alcohol abuse – father abusive to mother and her partner – father completes rehabilitation and other programs – assessment of risk of harm – mother and child settled in new family unit – graduated program of supervised then unsupervised contact ordered.

Family Law Act 1975, ss.60, 62, 64, 65, 68
Family Law Reform Act 1995

B v B: Family Law Reform Act (1997) FLC 92-755

Applicant:

M D B

Respondent:

J M O

File No:

NCM792 of 2004

Delivered on:

10 March 2005

Delivered at:

Wollongong

Hearing dates:

14 & 17 February 2005

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Davidson

Solicitors for the Applicant:

Boyd Wooi Olsen

Solicitor Advocate for the Respondent:

Mr M. Saunders

Solicitors for the Respondent:

Russell McLelland Brown

ORDERS

The child born in 1998 reside with the mother.
The father have contact with the child as follows:
(a)For two hours each four weeks at Centacare Children’s Contact Service at Wollongong.
(b)After eight monthly contact occasions exercised pursuant to the order above, contact shall take place from 10 am until 2 pm on the first Sunday of each calendar month. This contact shall take place in the Wollongong/Illawarra region.
(c)After four occasions of contact exercised pursuant to order 2(b) above, contact shall take place from 10 am Saturday until 4.30 pm Sunday on the first weekend of each calendar month. This contact shall take place under the supervision of the father’s parents who shall supervise from 4.30 pm Saturday until 10 am Sunday.
(d)As well as the contact referred to in order 2(c) above, after the father has had six periods of weekend contact he shall have holiday contact on two occasions annually. Annually means for 12 months from the date Order 2(d) becomes operational. Holiday contact shall be for four (4) days and three (3) nights, commencing 10 am on the first day and finishing at 4.30 pm on the last day. The father’s parents shall supervise this contact from 4.30 pm until 10 am each day.
(e)By telephone, card and letter at the child’s behest.
Both parties shall forthwith attend Centacare Children’s Contact Service at Wollongong and complete the intake procedures for inclusion in its supervised contact program. If after assessment the parties are accepted by the contact centre as suitable contact is to be implemented by the mother or her nominee delivering and collecting the child to and from the contact centre.
The father is restrained by himself, his servants or agents from telephoning, assaulting, molesting, harassing or intimidating the mother J M O and/or her partner P O or the child by entering into or upon, remaining upon or loitering near any premises at which the said mother may be residing or were she may be employed.
This order is for the personal protection of the mother, her partner and the child.
The father is restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the child’s hearing.
(b)Discussing any proceedings between the parents in the presence or hearing of the child or permitting any other person to do so.
(c)Contacting, approaching or attempting to contact the child by any direct or indirect means, SAVE AND EXCEPT as provided for in these orders.
The father’s contact is conditional upon him not consuming alcohol for twelve hours prior to or during contact and not consuming any illegal drugs for twelve hours prior to or during contact.
The father’s contact is conditional upon him continuing to attend Mr Pollock for counseling and therapy for so long as Mr Pollock considers this necessary.
The father shall keep the mother advised of contact telephone numbers and his residential address.
The father shall keep the mother advised of his parents’ contact telephone numbers and their address.
If the mother and child are traveling away for holidays the mother is entitled to suspend the operation of the contact orders on two occasions. She must give the father four weeks written notice of her intention to suspend his contact. Any contact forgone is to be made up. The father is to give the mother four weeks written notice of the days upon which he wishes to make up that contact.
That the mother is entitled to remove the child from the Commonwealth of Australia for the purpose of holidays overseas at times and dates that she determines. The mother shall give the father 14 days notice of her intention to take the child out of Australia, which notice shall include the foreign destination.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

NCM 792 of 2004

M D B

Applicant

And

J M O

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by M D B (“the father”) for contact to his son, “the child”. The child was born in 1998 and was 15 months old when his parents separated. Since their separation the child has lived with his mother J M O (“the mother”). After separation and until about October 2001 the father exercised regular contact to the child. In late 2001 the mother stopped contact because she believed that the father had again turned to drug and alcohol abuse and as a consequence was unable to adequately care for the child during contact.
The father started abusing alcohol when he was only 12 years old and drugs while still a teenager. By April 2002 he realised that he needed professional help overcoming his addictions. As a result he entered into the Salvation Army William Booth program at Surry Hills. This is a residential drug rehabilitation program. In May 2002 he transferred to another Salvation Army residential drug rehabilitation program at Bridge House near Newcastle. Asked to leave Bridge House in October 2002, he entered another residential drug rehabilitation program at Brighton House. He remained at Brighton House for thirteen months, leaving in December 2003. Whilst at Brighton House the father successfully completed the Open Foundation Course at University. In 2004 he enrolled in a Bachelor of Arts Degree, transferring mid year to a welfare course during 2004. Confident that he felt settled and stable, in March 2004 the father applied to reinstate contact with the child. The mother opposes the father’s contact application. She is far from satisfied that the father is free of his drug and alcohol addiction and does not accept that he is able to safely care for the child during contact. Relevantly, in the three and a half years that the father has been in rehabilitation and re-establishing his life, the child and the mother have moved on in theirs.
The mother has remarried and established an almost entirely new life. When she met her husband P O in January 2000 the child was 22 months old. She and P O began living together on 20 December 2000, at which time the child was nearly 3 years old. The mother and P O married on 26 October 2002. They have two children K O born in 2003 and E O born in 2004. The family lives in the Illawarra region at a place not disclosed to the father. The mother says that the child is generally a happy and healthy boy, settled in their family and his community. Although aware that M D B is his biological father, the child has established a strong relationship with P O and has in him a loving and healthy male role model. From her perspective contact after separation had been unsettling for the child and during it he had experienced his father under the influence of drugs and witnessed aspects of his father’s abusive behaviour towards her and her partner. When using drugs or abusing alcohol, the mother says the father was unreliable in terms of contact and that the child should be spared the heartache of being reunited with his father when the probability is that the father will not continue contact. For herself, the mother is concerned about the consequences for her entire family should the father become aware of their location. There is no doubt that she and her partner have been subjected to severe harassment, verbal and physical abuse from the father. Having reached a stage in her life where she has a settled and healthy family, not only does she wish that the child’s life is not disrupted but so also hers and her families.

The hearing

At the start of the hearing, the father moved on his application filed on 22 March 2004. After the family report was released, he changed his stance somewhat and during his evidence in chief agreed to a modified approach to the resumption of contact. He proposes eight fortnightly contact occasions exercised at Centacare Contact Service at Wollongong, telephone contact two or three times a week gradually developing into contact each alternate weekend and for one half of each school holidays.
He relied upon the following evidence:
·His affidavit sworn 1 November 2004 and his oral testimony.
·Affidavit of his solicitor Briony Manning sworn 7 February 2005. This witness was not cross-examined and I accept her evidence.
·Affidavit of Ross Shepherd filed 16 February 2005 and his oral testimony.
·Affidavit of C B filed 16 February 2005 and her oral testimony.
·Affidavit of Mr Pollock filed 16 February 2005 and his oral testimony.
The hearing commenced on 14 February 2005. At the end of the evidence I expressed my concern that the court did not have evidence from the father’s counsellor or others who could corroborate his claims concerning his rehabilitation. Nor was there any evidence available concerning his ability to exercise contact on a regular basis at his parents’ home. The father took the opportunity to address this gap in his case and the matter was adjourned until 16 February 2005 so that additional evidence could be provided. The last three affidavits on the above list were included prior to the resumption of the hearing.
The mother relied on her response filed 27 April 2004. Essentially, she asks that the father’s application is dismissed.
The mother relied upon:
·
Her affidavit sworn 23 April 2004 and a second affidavit sworn

8 February 2005 and her oral testimony.
·The affidavit of P O sworn 8 February 2005 and his oral testimony.
Because there were complex issues raised in this case, pursuant to s.62G2 of The Family Law Act 1975 the court ordered that a family report be prepared. Lucia Vardanega, psychologist and regulation 8 counsellor, interviewed the child, his parents and P O. The nub of her report[1] is found in the following:
J M O’s accounts are based on her experience with M D B when he was in a considerably different life space to the one he now finds himself in. Based on this assessment, her concerns are no longer valid and it is damaging for the child to continue to hold an impression of his father that is outdated. Furthermore, unless her high level of anxiety which arises from fears for the child’s safety if he were to have contact and the effects of this contact on her family unit does not abate, it may well interfere with the child’s perceived freedom to move between his parents and consequently his long term emotional and psychological health. Children caught in such situations are also prone to either falsely idolise or condemn the absent parent in the absence of current information.
[1] Exhibit A
At the end of her report Ms Vardanega recommends:
It is therefore recommended that any contact that is ordered in this matter proceeds slowly so that the parties rebuild some trust and that the child and his father begin to re-establish a relationship in a non-threatening environment. Unless this occurs in a climate where P O and J M O feel the child is safe and protected, the child is likely to sense the strain of his mother and her partner’s attitude, and find it difficult to move between his parents. Contact arrangements may need to initially involve a period at a contact centre leading to unsupervised day contact before weekend contact is commenced.

Relevant law

By the Family Law Reform Act Part VII, the portion of the Act that concerned with children, was substantially reframed. It introduced new concepts of residence, contact and parental responsibility with the aim of eliminating the idea that in contested child proceedings there were winners and losers, which many commentators suggested, carried the implication that parents had proprietary rights in their children. Section 65E conforms to the new language of the Family LawReform Act and states that the court, in deciding whether to make a parenting order, must “regard the best interests of the child as the paramount consideration”. This provision replaced s. 64(1)(a) of the Family Law Act1975 which stated that in proceedings relating to custody, guardianship or welfare of, or access to, a child “the court must regard the child’s welfare as the paramount consideration”. The change from the term welfare in previous legislation, to the best interests of the child in s.65E, had no bearing on the interpretation of the provision. Its purpose was to bring the Family Law Act in line with the United Nations Convention on the Rights of the Child.Accordingly, the interests of the child should be interpreted to mean the same as welfare, that is, in its broadest sense.
Section 60B sets out the objects of Part VII and the principles that underline these objects. Section 60B(2)(a) provides “children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.” Clearly sub-paragraph 2(a) emphasises the right of a child to know and to be cared for by both parents, regardless of whether they are together or separated. The question is whether the Objects section and therefore a child’s right to know and be cared for by a parent should be given predominance over the principle that the child’s interests are the paramount consideration.
This issue was resolved by the Full Court in B v B: Family Law Reform Act (1997) FLC 92-755. It was argued that the Objects section is to be given predominance over the paramountcy of the best interest principle in s.65E. Writing extra judicially Nygh J supported this view arguing that a hierarchical approach to relocation cases should be taken.[2] This would mean that s.65E must be set against or read down in light of the s.60B objects. Accordingly, the court must first consider the rights in s.60B, secondly the best interest principle and finally apply s.68F.[3] This argument is compatible with the view that in making a parenting order under s.65E, considerations other than that of the interests of the child can be considered.
[2] See Nygh, P. "B & B: Family Law Reform Act 1995" (1997) Australian Journal of Family Law(11)
[3] Young, L. "Are Primary Residence Parents as Free to Move as Custodial Parents Were?" (1996) Australian Family Lawyer (11) 3 p33.
The Full Court rejected this argument. It determined that ss.60B(2) and 68F are subject to the child's best interests. According to B & B: Family Law Reform Act 1995 the best interests of the child in proceedings under Part VII is the paramount or pre-eminent consideration “all other considerations are subservient to that”. This represents the current law. The Full Court held “a court which is determining issues under Part VII of the type which we have referred starts from that essential premise and it remains the final determinant”. Therefore whilst children have a right to be cared for by both parents this is subject to the child’s best interests. Importantly, the Full Court stated that in parenting proceedings no question of a presumption or onus arises “the Act contemplates individual justice…any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children’s best interests to legal issues relating to burdens of proof”.
In summary this means that s.60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle. Section 60B is important as it provides the context within which the relevant section 68F(2) factors are to be examined and ultimately weighed. The importance of section 60B factors varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.

The father’s circumstances

The father shares a rented unit in the Newcastle area. He attends University and relies on Centrelink benefits for financial support. The father has reconciled his differences with his parents and regularly spends weekends at their home in suburban Sydney. Four times each week the father attends Narcotics Anonymous meetings. For approximately twelve months he has attended weekly counselling with Leslie Pollock. Leslie Pollock is a psychologist attached to the Centre for Psychology at the Fletcher Hospital at Newcastle. During the last twelve months, the father has worked as a volunteer at Niagra Lodge, a residential drug and alcohol centre for men. Keenly interested in sport, during 2004 the father plays grade football with a local rugby union club, participation in which will continue during 2005.
In his affidavit[4] the father said “I maintain that since October 2001 I have continuously requested to have contact with the child. I say that Jennifer has either ignored my request for contact or refused it full stop.” This paragraph suggested that the mother’s response was somehow unreasonable. It was somewhat surprising then, that the father agreed that the mother’s evidence concerning his drug use, alcohol abuse, harassment and abuse of her and her partner was substantially correct.
[4] Paragraph 45
During the hearing I rhetorically asked what insight the father had into the effect of his behaviour upon the child, the mother and her family. In cases such as this in order to address future relationships, it is necessary to understand the past. Not only so that the court can assess risks to the child and mother as a consequence of the father’s addictions and behaviour, but also their capacity to trust that any improvements are enduring. Thus, although analysing the father’s past behaviours appears to have a negative focus, it is an essential part of the process.

When the father first consulted Leslie Pollock, Mr Pollock took detailed background information from him. Mr Pollock summarised the father’s background thus:
“He is the second eldest of five children, (he has two younger sisters and two brothers). He was raised by parents whom he described as having alcohol problems. His father was physically and emotionally abusive and M D B often felt very frightened. As a young boy entering his teens M D B reports being sexually abused on a number of occasions. He is very sensitive about this and found it a traumatic and disturbing period. He experienced fluctuating periods of depression, feelings of anger and self hatred. He did not enjoy school and reports many periods of depression in his adolescence. He started to use drugs and alcohol at about 12 years of age. He describes getting into fights as a child and often feeling that he wanted to escape from home. After leaving home he worked in six different jobs for periods ranging from three months to four years. His most recent position was as a salesman which he occupied for three years. He has been unemployed since leaving this position.
When he was 23 he married. Initially, the relationship worked but soon it deteriorated into a volatile and antagonistic situation in which he found that he had difficulty controlling his emotions. He became violent and abusive towards his wife and the relationship came to an end. He has a son by this relationship. It is my understanding that he was using drugs and alcohol while in his last job and during his marriage. He entered rehabilitation for alcohol and drug abuse in April 2002 and has not used any substances for over two years. He regularly attends AA and NA group meetings. He came to psychotherapy asking for help with his fluctuating periods of depression and his feelings of anger.”
I am satisfied that Mr Pollock’s summary accurately records the history given by the father and that the history given is factually correct. Details of the father’s drug and alcohol history are contained in the records produced from William Booth Clinic[5]. The father starting using alcohol twenty-two years prior to his admission and said that alcohol abuse had been a problem for the preceding decade. He described binge drinking on weekends. He had used cannabis daily from the time he started, approximately sixteen years ago. Just as he described using, “lots” of alcohol he used, “lots” of cannabis every day. He used ecstasy from about April 2001, two tablets most weekends. For the eight years prior to admission, he had gambled, “everything” every day. At 17 years of age he experimented with amphetamines and LSD, with heroin at 25 and cocaine at 26. With such a serious drug and alcohol history, it was surprising that the court counsellor reported, “He became quite defensive when I inquired whether he had provided evidence of his clean drug status to the court and replied that he was not a criminal”. Notwithstanding that he must have been aware that the extent of his rehabilitation was a central issue in these proceedings, the father provided no corroborative evidence concerning his rehabilitation. When cross-examined, he was plainly irritated that his testimony on this issue was being tested.
[5] Exhibit B
The William Booth records substantially confirm that whilst living in, during 2002 the father did not abuse drugs or alcohol. The father’s mentor, Mr Shepherd is the Director of Niagra Lodge. He is the residential coordinator of the lodge and has been for eight years. He holds a Bachelor of Social Work degree. The father met Mr Shepherd two years ago, when the father became a volunteer worker at the centre. As the father’s mentor, Mr Shepherd speaks with him four or five times each week. He also sees the father once or twice each week when the father volunteers at Niagra Lodge. Mr Shepherd said, “M D B is a person who has rehabilitated himself from using alcohol and drugs. He displays no signs of a person using or misusing alcohol or drugs. I earnestly believe that M D B is clean from alcohol and drugs”. I accept Mr Shepherd’s evidence. He has vast experience working with people who are addicted to drugs or alcohol and in drug and alcohol rehabilitation. During 2003, 2004 and as at the date of the hearing he has had substantial contact with the father, the central feature of which is his role as the father’s mentor. As mentor, Mr Shepherd is acutely sensitive to any signs that the father may be using alcohol or drugs. I am satisfied that Mr Shepherd’s observations are critical, by which I mean that he does not merely accept the father’s assertions as to whether or not he is using drugs or alcohol. Mr Shepherd’s evidence corroborates in a real way that the father has not used drugs or alcohol during the period that he has known Mr Shepherd. Examined as a whole, I am satisfied that the father has not used drugs or alcohol since late April 2002.
The tenor of the mother’s case is that because the father attends Narcotics Anonymous and consults Mr Shepherd and Mr Pollock, that the court could not accept that the risk he will return to drugs or alcohol is low. Essentially, that because the father needs this support, he has rehabilitated. In one sense this is correct. As a general proposition I accept that once a person has abused alcohol or drugs to the extent that the father has, there is always a risk that they may do so again. As a matter of pure logic, I also accept that if the father needs to attend Narcotics Anonymous four times a week and attend Mr Pollock and Mr Shepherd that his recovery is incomplete. The corollary to this, however, is that the father voluntarily attends Mr Pollock. He is self motivated and not coerced to do so. Although not described in these terms, I accept that the father realises that he needs not only to deal with his addictions, but also to work on his social skills and understand how he became an addict and what he needs to do in order to make the changes needed to avoid relapse. Thus, he has enthusiastically embraced counselling and therapy. Mr Pollock believes that the father is committed to his rehabilitation and that he is making progress in individual therapy. Mr Shepherd believes that he and the father have a very constructive mentoring relationship and that the father has made good progress. I accept both opinions. I also accept that the father will continue to attend Mr Pollock and maintain his relationship with Mr Shepherd for as long as they consider necessary. Thus, although in one sense the father is no ready to stand alone, he embraces appropriate supports and is committed to maintaining the supports he needs for his rehabilitation. Rehabilitation has been difficult and no doubt at times distressing. Occasionally, the father’s commitment has wavered as aspects of therapy became too confronting. For example, dropping out of group therapy. I accept Mr Pollock’s opinion that the father was raised within an, “Abusive, chaotic and invalidating environment” and that the, “Care he received was often inconsistent and mixed with aggression”. With the support of his therapist, the father has sought to address issues with his parents. This has had a positive outcome and the father reported to Mr Pollock, “That his relationship with them, particularly his relationship with his mother, have improved substantially. He reported recently that he felt this issue was now resolved. His feelings of anger seem to have dissipated considerably in response to this initiative and he reports being calmer and more at ease in himself”.
Although he did not come to court seeking recognition per se that he has worked enormously hard in his rehabilitation, it is heartening to see that this young man has come to terms with a troubled past. At times he must have felt that the easier option would be to abandon his quest for rehabilitation rather than continue. Fortunately, he found the strength to persevere. His achievement is a credit to himself and to those who have stood by him. The net effect of these findings, is that I am satisfied that the father will maintain therapy and his narcotics anonymous supports. Whilst there will always be a risk that he may abuse drugs or alcohol, for the reasonably foreseeable future, I am satisfied that the risk that he will do so is low.
From the father’s perspective, he approached this case on the basis that provided he satisfied the court that he was unlikely to use drugs or alcohol again, it followed that contact with the child would be re-established and develop rapidly into regular weekend and block holiday contact. He appeared to have little appreciation that while this was a key issue, the situation also needed to be examined from the child’s perspective. In order to do so it is also necessary to consider the mother’s circumstances.

The mother’s circumstances

The mother was 19 years old when she and the father commenced cohabitation. They lived together from January 1997 until May 1999. The father is four years older than she is. I accept the mother’s evidence concerning her relationship with the father. Whilst they lived together, his moods varied, from quiet depression to physical aggression. Basically, their relationship fluctuated according to the father’s moods. When he was calm, the father recognised he needed help. When agitated he was often physically and verbally abusive. When he threatened her, the mother tried to lock herself and the child in a bedroom or bathroom until the father calmed down. When she could not cope with his distress or behaviour the mother sought his parents’ assistance, which they readily gave. Unable to cope with the father’s behaviour, the mother left the marriage.
Following separation she facilitated regular contact between the father and the child. Initially, the mother supervised contact at her mother’s home. From there, contact progressed so that the father exercised regular unsupervised day only contact and from May 2000, the mother facilitated regular overnight contact. She facilitated contact notwithstanding that it was plain that the father was depressed, generally not coping and abusing drugs and alcohol. For example, on 27 November 1999 the father was unable to exercise contact as he was in hospital following a fight at a hotel. Concerned about him, the mother took the child to visit his father. When the mother arrived the father was still under the influence of alcohol. On 3 January 2000, the father asked the mother to collect the child early. When she arrived the father was holding the child on a trampoline whilst the father was crying. The father’s grandmother was eventually able to calm him down and the mother left with the child. Later that day the father tailgated the mother on Smithfield Road. The mother was frightened and the child distressed. That same day the father telephoned the mother thirty-five times.
During 2000 P O was often present at contact changeover. I accept his evidence that at changeover, the father was often angry, loud and abusive towards the mother. On one occasion he saw the father push the mother whilst she was holding the child. When P O intervened, the father said, “Fuck off, this has nothing to do with you”. As the exchange deteriorated, the child was frightened by his father’s aggression. By early 2001 contact changeovers became extremely difficult. The father telephoned the mother at all hours of the day and night, the telephone calls frequently involving threats of violence and/or sexual innuendo aimed at either the mother or P O. The mother received numerous SMS messages, the contents of which were generally abusive and offensive. Relevantly, P O says that the father’s speech was slurred when these phone calls were made.
So that he could spend more time with the mother and protect her from the father’s increasingly erratic and abusive behaviour, P O transferred from long haul flights to short haul flights. He works as a pilot with an international airline and working as a long haul pilot, he was frequently required to be absent from home a week at a time.
After the mother stopped contact, the father’s behaviour deteriorated. During one telephone call received at 3 am during the week, the father threatened to rape the mother. When P O took the phone the father threatened, “I’ll cut your head off”. I have no difficulty accepting the mother and P O’s evidence that having established a peaceful and safe family life, they do not want to expose themselves or the children to this style of behaviour ever again.
After the mother and P O married, the child asked P O if he could call him, “dad”. P O agreed and since then the child has referred to him as dad. The mother and P O have ensured that the child knows that P O is not his biological father and that M D B is. All cards, gifts and letters forwarded by the father for the child have been given to him. The mother has read the father’s cards and letters to the child. She has ensured that the child sent his father cards, drawings and paintings on the father’s birthdays, Father’s Day and other special occasions.
In January 2002 the O’s moved to the south coast where they have built their home. The child attends a local school where he is doing well. He plays football and attends swimming lessons. In the community where they live only the child’s school teachers know that they are a blended family. Only those who must be made aware of the child’s paternity, appreciate that P O is not the child’s father. I was impressed by the mother and P O. Both are strongly protective of their family unit and their relationship appears mutually loving and respectful. P O has assumed all but exclusive financial responsibility for the child and shares equally with the mother his emotional parenting responsibility. Because the mother is not in paid employment, on a day by day basis, she is more actively responsible for the child’s care. However, subject only to his work commitments, P O plays a key role parenting the child.
After all the father has put them through, it is not surprising that, “While P O acknowledges that M D B is the child’s biological father and perhaps some written contact may be maintained, she sees no other advantages that could accrue for the child through contact with his father.” Or that P O explained, “The child is in his own world with us, has a close sibling relationship with K O and has little need for the influence of M D B in his life. P O has stated that he has assumed the responsibility for the child unquestionably and is afraid the family unit might be disrupted by contact”.

The child and his relationships

With her usual thoroughness, Ms Vardanega, gave a detailed account of her discussions and observations of the child. Ms Vardanega was not cross-examined and I accept her evidence. Subject only to my view that she unfairly criticised the O’s maintaining their privacy concerning the child’s paternity in their local community. Ms Vardanega is an experienced psychologist well known to the court. In her report she demonstrates a sound understanding of the parties, the child and the issues in this case. I am satisfied that her recommendations should carry considerable weight.
Ms Vardanega reports on the child as follows:
“The child presented as an articulate boy who seemed quite relaxed in the interview situation. The child stated that he likes school particularly drawing and maths. He also referred to other interests including football at which he said he excels.
When I asked the child what he understood the purpose of the day to be, he seemed aware that it related to contact with his father. He told me, ‘Mum said I can say anything and no one will be angry’. He spontaneously told me that he did not want to see

M D B because “I am scared he might do something because he is on drugs”. When asked how he knew this, the child replied, ‘Mum told me. We left him when he was on drugs. He got on drugs – we only found out when he was in hospital cos he got really sick. The doctor rang us and told us’.
I invited the child to tell me what he remembered of his father and he told me ‘he has black hair’. He also recounted that he and his father used to go to the park a lot, played on the monkey bars and his father pushed him on the swings. The child also described how he would sit on the couch with his father and play with the play station. According to the child, all of this happened ‘before he was on drugs’. The child stated that he did not want to resume seeing his father because he ‘might take one of the tablets or something’.
The child stated that he has contact with his father at Christmas and on his birthday via cards and gifts. He listed some of the gifts his father had purchased for him including marbles, a few books and two dinosaurs. He stated that he also sent some art work to his father.
When asked to draw his family the child asked me, ‘Would you like me to draw both dads or only dad P O’. When I told him that he could choose the people he included the child said ‘I’ll draw the people in my house then’.
Although both M D B and the child expressed some nervousness about seeing each other again, the initial trepidation seemed to pass and the two engaged in conversation about their common interest in sport particularly football. The child informed his father that he wanted to be a football player when he grew up.
The child initiated other activities including writing on the whiteboard, playing in the sandpit and telling jokes. M D B sat on the floor and responded to the games the child instigated.

M D B also attempted to make some efforts to share with the child aspects of his life such as where he lived, how he had come to Wollongong for the appointment and details of his family. The child appeared disinterested in particulars M D B gave of his family and M D B commented to the child ‘You’re not into reminiscing about the past. We used to see them a lot but maybe you don’t remember’. Occasionally, during the interaction M D B nervously laughed. The child commented to his father ‘every 5 minutes you are laughing’. In response, M D B said to the child ‘laughing is good for you. It means you are happy’. This nervous laughter was observed during the interview with M D B as well.
At the end of the observation session, M D B told the child he was looking forward to seeing him again. The child asked his father when that would be and M D B replied he did not know.”

Determining the child’s best interests

I now turn to the relevant factors that guide the court in making a decision which promotes the child’s best interests. Both parties agree that the mother should have a residence order made in her favour.

I agree that this is appropriate. Also that the child should be able to holiday overseas with his family from time to time. The opportunity to do so fortunately arises reasonably frequently in consequence of P O’s employment. I make the usual order to address this scenario.
The child told both his mother and step-father that he does not want to resume contact with his father. In circumstances where he has not had contact with his father for such a significant time and his emotional needs are well provided for by his mother and step-father, this is not surprising. To an extent, the child’s wishes reflect satisfaction with his current situation and an understandable anxiety about what changes contact with his father may bring. His recollections of his father are fortunately positive and his fear described to the counsellor, “I am scared he might do something because he is on drugs” is fear of the unknown. The child’s discussions with the counsellor about his recollections of his father reveal that he has little recollection of his father’s deficits whilst abusing drugs and alcohol and virtually no recollection of his father’s aggressive behaviour towards his mother and step-father. I am satisfied that the child does not seek to re-establish a relationship with his father. However, at 6 years old he does not have the maturity or life experience needed to understand the ramifications of re-establishing or refusing further contact with his father. Because the child is a well mannered and good natured child who trusts his mother and step-father, with their support and guidance his anxiety concerning contact with his father can be overcome. He is far from having a strongly formed view against contact and is amenable to developing a more positive attitude favourable to contact if others support this approach. The child’s wishes do not carry considerable weight.

More compelling is the nature of the child’s relationships. The child is strongly attached to his mother and step-father and between them they meet his physical, intellectual and emotional needs to a very high degree. He trusts both of them implicitly and from them gains his fundamental sense of stability and security. Because the child knows P O is not his biological father, re-establishing contact with his biological father need not undermine that important relationship. Both the mother and P O have a very strong relationship with the child, sufficiently strong to withstand the re-introduction of contact between the child and his father without detriment.
The child’s relationship with the father is at a critical stage. If more time passes without contact resuming, it is probable that their relationship will effectively die and lie dormant for many years. Basically until the child, like many people who grow up without a parent, seeks him out. If contact resumes there is a real possibility that the child could have a meaningful relationship with his father that enhances the child’s sense of identity and completeness. I accept the submission that merely because the father is not the child’s natural parent, that this does not mean contact must be re-established. However parenthood is the cornerstone of families and for most people their identity. That is it critically important is reflected in Parliaments reference to children’s relationships with parents in the Objects in Part VII. Too often one sees catastrophic social consequences for children deprived of a relationship with a parent. Knowing ones parents, their strengths and their weaknesses is one of the fundamental features of life. As a general proposition where a child is able to enjoy a relationship with both of its parents without putting the child’s welfare in jeopardy, this outcome should stand the child in good stead during its minority and as an adult. By re-establishing contact, the father can contribute to the child’s understanding of who he is. The child has the opportunity to reconnect with his paternal relatives. These people are keenly interested in his welfare and are part of the life he was born into. Provided contact is carefully structured so as to maximise the father’s strengths and not undermine the O’s family unit, the child and his father have the capacity to develop an appropriate father/son relationship.
Reintroducing contact will change the child’s circumstances, the extent to which needs careful consideration. The mother’s comfort with her current situation derives from a number of factors. Firstly, her strong relationship with her husband and the support he provides. Secondly, the security she derives from the knowledge that the father does not know where she and her family live. This means she is free from the abuse and harassment she previously endured. Finally, and critically, her innate sound judgment and impressive personal qualities. The mother is an obviously intelligent woman with the critical ability to stand back and analyse situations. Her critical ability is probably enhanced by her university studies and training with the police academy. When she stands back and considers the evidence from the William Booth Clinic, Mr Pollock and Mr Shepherd she is able to understand that the father has not used alcohol or drugs for a number of years. Distilling those facts is an intellectual exercise. A no less important factor is the mother’s emotional acceptance that the father has made the changes which she and court heard evidence about. Not surprisingly, the mother needs time before she could emotionally accept that the father is basically a different person now that he is rehabilitated. Her emotional acceptance of this fact is only likely to develop as the father demonstrates that he accepts the boundaries around her relationship with P O, abides the court’s orders and rigorously guards against any relapse. If contact resumes and the father relapses into drug or alcohol abuse or resumes his aggressive and unacceptable behaviour towards the mother and her family, then it is probable that any trust the mother may have in his rehabilitation will be lost forever. Should such an event come to pass, it is almost certain that the child, because he is so reliant upon his mother would also forever lose faith in his father.
If I was persuaded that reintroducing contact exposed the mother to behaviour of the type she previously endured from the father then notwithstanding the terrible loss for the child of a potential relationship with his father that is the outcome that I would order. It is not possible to find with certainty that the father’s behaviour towards the mother was triggered by his alcohol and drug abuse, combined with his depression and unresolved family issues. What is apparent, however, is that the father was under the influence of drugs or alcohol when he abused the mother and/or P O. He is also capable of violent and abusive outbursts when drug or alcohol free. This is apparent from the William Booth records where it is clear that he has been verbally abusive towards counsellors and other residents. He must accept some responsibility for the violent altercations which resulted in his discharge from the centre. It is in this sphere of behaviour that Mr Pollock’s therapeutic intervention has been critical. The father has made considerable gains in learning to control his emotions, including his anger. It appears that Mr Pollock saw resolution of the father’s anger towards his parents as a critical factor if the father was to come to grips with his past, hence reasonable achieve emotional stability. By working on his relationship with his parents, the father has achieved a sense of equilibrium that he has not had for many years, if ever. With Mr Pollock’s support, it appears the father has acquired a skills set that enables him to manage his anger without aggression. I consider that there is now virtually no risk that the father will approach the mother or her family. Nor is he likely to jeopardise contact with the child that he so strongly yearns for by breaching any of the restraints placed upon him as a precondition for contact.
Notwithstanding these findings, there is no good reason why the mother should deal directly with the father unless she wishes to. Contact changeover can be managed through a contact centre or through third parties. The choice is the mothers to make. In the short term, changeover at a contact centre is desirable because those staffing the centre will not only ensure that changeover proceeds without any risk that the parties would come in contact with each other, but also offer the child assistance if he is anxious about leaving with the father. If the child’s anxiety is too great, the supervisors will intervene and contact will not take place. They can later assist the parties and child with strategies that maximise the prospects that contact will succeed.
It must be apparent that I am persuaded that the court counsellor’s recommendations for the reintroduction of contact are in the child’s long term best interest. In the short term these changes will be destabilising for the child and his family, which instability is likely to resolve in a reasonably short space of time. Striking a balance between the competing issues in this matter which direct the frequency of contact is quite difficult. Presently, the rhythm of the child’s life works well for him. It is unlikely that in the medium to long term, the child would accept fortnightly contact and contact so frequent is probably more than the child’ family can reasonably adapt to. The father will be travelling from Newcastle for contact. He does not own a motor vehicle and his mother is unwilling to lend him hers. Thus, the travel will be by public transport, a journey which in total from Newcastle to Wollongong is likely to be about four – five hours. With all of the demands on his time and mindful of the importance that the father not over-tax himself, fortnightly contact even if made available may fail. By this, I mean there is a real possibility that the father would not exercise contact every fortnight. For contact to succeed the father must be absolutely reliable so that there can be no question in the child or the mother’s mind about the father’s commitment to contact. Graduated contact that results in contact one weekend a month strikes the right balance between the rhythm of the child’s life as presently structured, his father’s capacity to avail himself of all the contact to which he is entitled and the amount of time needed to enable the child and his father to develop a true parent/child relationship.
The father contends that contact would start with eight fortnightly supervised sessions at a contact centre. Usually the contact centres offer a maximum of two hourly visits, this is about the maximum period that the child is likely to be able to enjoy without starting to fret.

I consider fortnightly contact too frequent and potentially disruptive for the child and his family. Monthly contact is preferable as the strain placed on, particularly the child and his mother, by reintroducing contact will not be too great. In order for contact to succeed in the long term the initial pace must be tempered by the child’s and his families capacity to adapt. If the pace for contact is too intense it is likely that contact will be too disruptive and hence less likely to succeed.
After eight months of this style of contact, the father will be able to exercise unsupervised contact on four occasions of four hours, which contact will be restricted to the Illawarra region. Thereafter, the father will exercise contact on an overnight basis on the first weekend of each calendar month. This contact will start at 10 am on Saturday and end at 4.30 pm Sunday. Overnight, the child must be at his paternal grandparents’ home. The father will need to ensure that he and the child arrive at the father’s parents’ home no later than 4 pm Saturday and are then in their company until 10 am Sunday. This style of supervision is essential for the child and his mother’s confidence that contact will not involve drugs, alcohol or aggression. Although I am satisfied that the father does not pose a risk to the mother and her family of further abuse or drug and alcohol abuse overnight contact will be supervised. When overnight contact starts the father says he will exercise contact at his parent’s home in the western suburbs of Sydney. The distance between Wollongong and Newcastle makes overnight contact in Newcastle untenable. Contact would basically be consumed by travel, hardly a constructive exercise for anybody.

I accept that the mother and her partner would be highly anxious if the child was to be taken so far away from them and terribly worried that if the father relapsed it would be many hours before they could come to the child aid. Including the father’s parents in overnight contact maximises the chances that this style of contact will succeed. While supervised contact is often a step of last resort, here it is needed if long term the child and his family can cope with this style of contact. In ordering this restriction the court is not pandering to irrational fears, it is a considered response to the mother’s grim experiences with the father. The mother is concerned that the father’s parents will not rigorously supervise contact and that with their past frailties may turn a blind eye if the father is abusing drugs or alcohol. Although the paternal grandmother was plainly partisan, it is clear that she understands the risks that she must guard against. I do not believe that she would stand by and allow the child to be mistreated or neglected. She is as enthusiastic that contact succeeds as the father is and I consider it highly unlikely that she would jeopardise it by neglecting her role as supervisor. If the risks to the child were greater it may be that these grandparents would not have found favour as supervisors. To an extent my satisfaction for the role takes into account the extent of the risks.
After weekend contact has occurred on six occasions, the father will be able to nominate two periods annually where he has slightly longer contact during school holidays. These longer periods of contact will last for four days and three nights, and must be exercised substantially in the presence of the father’s parents. The night times will be structured in the same fashion as overnight contact. This constraint does not restrict the father’s capacity to take the child on a short holiday; it merely means that if he does so his parents must accompany him. I have not provided for contact on special occasions such as Christmas Day and birthdays. Father’s Day is the first Sunday in the month and will always coincide with a contact weekend. Although the father would enjoy contact on the other important days in the child life, the child is likely to enjoy these more in his mothers, step-fathers and siblings company. As I do not consider that more frequent contact is appropriate unfortunately for the father he must miss out.
Both parties submitted that the court should consider not making final orders. For her part, the mother submitted that the court could not be confident that each gradual step for extra contact would succeed.

I disagree and am satisfied that the graduated program should succeed and is likely to be enhanced by the child’s developing maturity and capacity to enjoy his father’s company. Unless the father achieved regular alternate weekend and half school holiday contact, he sought the opportunity to press his claim once more. The orders I make are intended to address the child’s long term interests. It may be that in years to come the child’s relationship with his father will be on a stronger footing than one can presently anticipate and that the father will have made even greater gains in his rehabilitation. Armed with that style of evidence, there is the prospect that in years to come the father may make another contact application. I take that into account. However, I am satisfied that I should finalise this litigation and notwithstanding the prospect of future litigation, make orders that address the foreseeable future.
There are a series of injunctions that restrict the father’s contact with the mother and her family. She must continue to feel free in her community and safe from any intrusion from the father. He must understand that compliance with these injunctions is fundamental to his capacity to have contact. The injunctions are for the mother’s, her partners and the child’s personal protection. This means that should they be breached the father can be arrested without warrant.
The father must continue his attendance upon Mr Pollock for so long as his counsellor considers necessary. These attendances contribute to the father’s emotional and psychological well being. Although the father assumes that the child will automatically embrace contact that may not necessarily be the case. Mr Pollock is well qualified to equip the father with strategies that may assist him in addressing any difficulties with contact, both for himself and for the child.
I am satisfied that the orders that I make are in the best interests of the children and for these reasons I make the orders identified at the start of this judgment.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 10 March 2005