MRT and KET - [2006] FMCAfam 259

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MRT & KET

[2006] FMCAfam 259

FAMILY LAW – Children – contact – young child – domestic violence – where court finds likely father attacks mother during contact changeover – where mother genuinely fears father may self-harm or harm child during contact – outstanding criminal proceedings – supervised contact to continue for finite period – father has liberty to apply for unsupervised contact during adjournment upon provision of psychiatric evidence – if father fails to provide psychiatric evidence order for contact discharged.

Family Law Act 1975, ss.60, 65, 68

B and B: Family Law Reform Act
JG and BG (1994) FLC 92-515
Patsalou and Patsalou (1995) FLC 92-580

Applicant:

MRT

Respondent:

KET

File Number:

PAM1271 of 2004

Judgment of:

Ryan FM

Hearing date:

4 May 2006

Date of Last Submission:

30 May 2006

Delivered at:

Parramatta

Delivered on:

6 June 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms M. Gillies

Solicitors for the Respondent:

Burston Cole & Mulock

ORDERS

Orders 4, 5, 6, 7, 8 and 15 of the orders made 23 April 2004 in the Federal Magistrates Court are discharged.
The parties do all things necessary to continue participation in a supervised contact program at Central West Contact Service, Harris Park.
The father is to meet all costs associated with participation in the Central West Program.
Pending further order, the father shall have supervised or facilitated contact at the Central West Contact Service for two hours each second Saturday, commencing on the first Saturday the contact service makes an appointment available.
Order (4) above expires ten (10) months from today. In this period, the father has liberty to re-list this matter upon giving fourteen (14) days notice. This is conditional upon the father simultaneously filing a report from a psychologist or psychiatrist which addresses his mental state.
In the event the father fails to re-list the matter, as at 10 April 2007 all outstanding applications are dismissed.
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.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM1271 of 2004

MRT

Applicant

And

KET

Respondent

REASONS FOR JUDGMENT

This is a contact application by MRT, (“the father”) concerning the parties’ only child, Jessie (not her real name) born in 2003.
The parties separated when Jessie was about 3 weeks old. Since then she has lived with her mother and half sisters.
In March 2004, KET, (“the mother”) commenced proceedings in the Federal Magistrates Court seeking residence and contact orders. I do not know if between separation and 23 April 2004 the father saw Jessie.
On 23 April 2004 the parties reached agreement and final parenting orders were made by consent. Simply put, the orders provided that Jessie lives with her mother until she turns 3 years old, has contact with her father from 5.30 pm to 7.30 pm each Wednesday and every Saturday and Sunday between 1.30 pm and 3.30 pm. This contact regime is designed to increase as Jessie grows older.
Until August 2005, by and large, contact occurred with the frequency and for the duration provided in the April 2004 orders. Minor variations occurred which enabled the father to have slightly longer periods with Jessie. Although the orders required the father to collect Jessie from the mother’s home, he persistently refused to do so. On 23 January 2003 the father was convicted of high range PCA and mid-range PCA. Having been charged on the first count, the father was arrested again the same night when seen driving. In April 2001 he had been convicted of a PCA offence at Kempsey. As a result of the January 2003 convictions the father’s licence was suspended and he was ordered to complete two hundred hours community service. Because he failed to abide by his community service obligations, at some stage, the father’s sentence was converted to weekend detention. Whilst performing weekend detention he only saw Jessie for a few hours during the week.
Other than the two occasions when the father collected Jessie from her mother’s home, at the father’s insistence, the mother delivered Jessie to him. At the end of contact the mother collected Jessie from the father’s home at Springwood. The father’s suggestion that this variation to contact changeover arrangements was mutually convenient is nonsensical. It reflects positively on the mother’s commitment to Jessie’s relationship with her father that, notwithstanding his refusal to collect their daughter, she travelled backwards and forwards with her other five children, at the commencement and conclusion of contact. The mother did so because she wants Jessie to enjoy a good relationship with her father.
Although overnight contact was not due to commence until November 2006, the parties agreed to trial overnight contact much sooner. Thus, the father had overnight contact on 26 August 2005, 9 September 2005 and 22 October 2005. It appears that the first occasion of overnight contact proceeded well. On the second occasion Jessie was running a temperature when she went to her father. The mother provided liquid Panadol and half a bottle of Phenergan. The following morning Jessie’s temperature spiked and she had a febrile convulsion. The father panicked and telephoned the mother. She gave him advice about how he could bring her temperature down and instructed him to call an ambulance. When the mother realised the father was frozen with panic she called an ambulance. Jessie was admitted to Nepean Hospital overnight. Both parents spent time with her. The father stayed overnight at the hospital and the mother came back and forth. On the next occasion, overnight contact went well.
On 1 November 2005 the father telephoned the mother during which the following conversation occurred:-
Father – I think it would be better if Jessie lived with me, don’t you?
Mother – Why?
Father – If you were a good mother you would want what is best for Jessie. People like you don’t see their children grow up. God has a way of making accidents happen.
Mother - What is that supposed to mean?
Father – Just remember, God is watching everything you do.
To put this conversation in context, the mother explains that when she was expecting Jessie the father assaulted her. He was convicted of common assault and an apprehended violence order was made for the mother’s protection. This apprehended violence order expired in April 2005. From this point the father was increasingly difficult with the mother. For example, on 29 September 2005, he refused to return Jessie at the end of contact, an occasion arranged to suit his convenience. Jessie was returned after the mother contacted Springwood police and only after the father was forced to do so.
On 2 November 2005 the father telephoned the mother and asked if he could see Jessie. The mother agreed to meet him at 3.30 pm at Windsor. When delivering Jessie, the mother said, “I’ll be at your place at 5.30 pm”. The mother duly arrived at the father’s home at 5.30 pm. When she arrived, the father was not at home. The mother telephoned him on his mobile and he told her that he was waiting for a taxi. The mother continued to wait and when at 6.45 pm the father had not arrived, she again telephoned him. The father arrived home at 7 pm. Upon the father’s arrival, the mother approached the taxi from which the father and Jessie were alighting. The father said, “I have to go inside and change her nappy”. The mother waited and after fifteen minutes she knocked at his front door. In response to the mother’s knocking, the father called out, “I can’t open the door, you’ll have to go around the back”.
The mother walked to the rear of the father’s home, and as she arrived he came outside. Unable to see Jessie the mother asked if the father was bringing her out, to which he answered in the affirmative. The mother turned to walk back towards the front of the property when she realised the father was following her. As she turned to look at him he grabbed her hair and pulled her back. The mother screamed and the father let go. The mother saw the father pull a knife from the back of his shorts. By this stage the parties were less than one metre apart facing each other. The father thrust the knife towards the mother but he did not touch her with it. The mother turned and ran towards her car screaming. The mother’s five other daughters had accompanied her to collect Jessie. Kara, Rachel and Jessie were out of the car walking towards her. Although the three children had an unobstructed view down the side of the house, the house blocked their view of what occurred between the parties at the back door. The mother yelled to the children to get into their car and all five girls and the mother locked its doors and wound up their windows.
Using the emergency number, the mother called the police. Within ten minutes three or four police cars arrived. The police retrieved Jessie and later took a statement from the mother and Kara.
About 11.30 pm that night the father telephoned the mother and said, “We need to talk about Jessie”. The mother told him she did not wish to speak with him and hung up. Immediately the father called back and requested contact the following day, which the mother refused. In approaching the mother and making this request, the father demonstrates an alarming inability to view situations other than from his own perspective.
Not long afterwards the father was charged with assaulting the mother and an interim apprehended violence order was made for her protection. The father denies the mother’s allegations wherever they are critical of his behaviour. He also claims he has contact at least five and often six days each week. The mother says this is grossly exaggerated and points out she and her other five children had commitments which made it impossible for her to facilitate the type of contact the father alleges. As he was working full time such extensive contact is also unlikely. As between the parties, the mother was a much more impressive witness. There were too many gaps in the father’s evidence to accept the balance of his testimony where challenged by the mother. Quite simply the father failed to disclose a considerable amount of relevant evidence, in my view because he believed doing so would harm his case. If the father wished to persuade me to accept his uncorroborated version of challenged events, he needed to give a far more complete history than I received. On balance, where there is a conflict between the parties evidence I am satisfied I should prefer the mothers.
The parties attended Penrith Local Court on 8 November 2005 in relation to the 2 November 2005 incident. At court, the father followed the mother, sitting next to her even though there were other vacant seats. When she moved outside, he followed her. Although she moved away and found another seat, he continued to follow her. By this time the mother was in tears and she was taken by a sheriff’s officer into a private room. When the matter was called, the father sat behind the mother and said loudly enough for her to hear, “The judge is going to see [the mother] is a liar and throw this out. They will see right through her lies”. The court continued the interim apprehended violence order and the proceedings were listed for mention at a future date.
Because the mother stopped his contact, on 5 December 2005 the father filed an application for parenting orders at Windsor Local Court.
On 2 December 2005 the Local Court made interim orders to the following effect:
The father have contact with the child Jessie as follows:
(a)     From 12 noon – 1 pm on 25 December 2005;
(b)     From 12 noon – 1 pm each Sunday commencing 1 January 2006;
(c) Contact to take place at Springwood Police Station or Penrith Police Station as selected by the mother.
(d)     Contact to be supervised by the mother or her nominee.
For a variety of reasons, the mother had opposed the orders suggested by the father and made by the Local Court. In my opinion the father’s request that the mother supervise his contact is both bizarre and concerning. By this stage he had twice been charged with assaulting her, and he knew she was afraid of him. This is another instance of the father’s inability to analyse a situation from any perspective other than his own self interests. The mother proclaimed her unwillingness to supervise contact. Station sergeants at Springwood and Penrith informed the parties, before the orders were made, that contact could not take place using police premises. Even though a court ordered it, contact did not occur.
On 1 March 2006, the orders made 2 December 2005 at Windsor Local Court were discharged. Not long afterwards, by informal agreement, the parties arranged supervised contact at Central West Contact Centre. The father commenced supervised contact on 8 April 2006 which occurred on four occasions prior to this hearing. Jessie was very distressed during the first two contact occasions. However, by the fourth, supervised contact was reasonably comfortable in her father’s company. If, as the father alleges, he was Jessie’s primary carer, notwithstanding the gap in contact, I would have expected her to be quickly comfortable with him. The fact that it took three visits before she was only reasonably comfortable suggests the father has greatly exaggerated the amount of time he has spent with his daughter.
This hearing occurred 4 May 2006. The father’s assault charge was listed for hearing at Penrith Local Court on 24 May 2006. The parties agreed the outcome of those proceedings were potentially relevant to these proceedings. Importantly, the Local Court was to receive evidence from the parties, the mother’s elder daughter Kara and police. Thus, having completed the evidence, I adjourned these proceedings until 30 May 2006. This was to enable me to have the result of the father’s assault charge. On the adjourned date, the father explained that his case was not reached. However, he eventually conceded that he sought an adjournment of the assault proceedings which the court granted. This was another example, one of many, where I felt the father attempted to mislead me on a material point. On this occasion the wife’s counsel informed the court that the statement of the mother’s daughter Kara will be received in the criminal proceedings without Kara being cross-examined upon it. This is because via his solicitor, the father has advised the Local Court that he does not wish to cross examine her. Again, the father eventually conceded this point. Although I had earlier decided against giving Kara’s statement any weight, I reversed my earlier ruling and this statement now carries significant weight. Kara could not see whether or not the father attacked her mother with a knife. However, she describes the mother fleeing in terror from the father. Her evidence is consistent with the mother’s account. Police took Kara’s statement the same day as the incident occurred. Thus, the mother’s opportunity to coach her daughter and persuade her to give false evidence was limited. This incident raises grave concerns about the father’s ability to safely exercise unsupervised contact.

Relevant law

Contact orders are parenting orders conducted under Part VII of the Family Law Act 1975. Section 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 s 68F(2) factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case. Where there are no countervailing factors, the s 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.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act.
Violence and the risk of exposure to violence is a significant issue in these proceedings. In addition to it’s inclusion as a relevant factor in s 68F(2)(g)(h) and (j), s 68K emphasises that consistently with the child’s best interests being the paramount consideration, and a parenting order should be consistent with a family violence order. A parenting order must not expose a person to an unacceptable risk of family violence and can include protective safeguards. A contact order that is inconsistent with a family violence order will prevail over the family violence order. Section 68R contains provisions about making an order for contact that is inconsistent with a family violence order. The manner in which the court must examine family violence in proceedings for a parenting order is identified in JG and BG (1994) FLC 92-515 and Patsalou and Patsalou (1995) FLC 92-580.Evidence of family violence is relevant insofar as it assists the court in determining what orders will best promote the interests of the children. 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. So far as the evidence allows, the court will attempt to understand the nature of any violence that has occurred and its potential effects on children. Exposure by a child to violent family relationships can be harmful to a child’s emotional development. Even if the issue is not addressed in submissions, the court has a responsibility to consider the effect on a child of a violent parental role model.

Determining the child’s best interests

The father’s circumstances

The father was born in 1973 in England. He has lived in Australia for many years. Since 31 August 2004 the father has lived in private rented accommodation at Springwood. This is a three bedroom property in which the father resides alone. The father has established one of the bedrooms as Jessie’s.
The father works full time as a bricklayer. After the mother requested the Child Support Agency to collect child support in November 2005, the father has paid $147 per month.
Although he makes no mention of it, the father has a son, Jake (not his real name) who was born in 2002. In mid-2004 the Department of Community Services removed Jake from his mother and Jake is now in long term foster care. The father exercises fortnightly contact with Jake of approximately two hours duration. For reasons which were never made clear, the father was unable to persuade the Department of Community Services, and apparently a Children’s Court, that Jake should reside with him or that he should have considerably greater contact with his son. The father agrees Jake’s mother made violence allegations against him which he says are untrue.

Although he makes no mention of it in his affidavit, the father agrees he has had difficulties with alcohol abuse. His uncorroborated evidence is to the effect that he had not consumed alcohol for about three weeks prior to the hearing and now has three or four drinks on occasion with friends. There is no suggestion from the mother that on the many contact changeovers the father has appeared affected by alcohol or showed signs that before contact he had been drinking. It appears that presently, at least, the father has made real gains in achieving sobriety. Whether the father will be able to maintain his sobriety remains to be seen.
The father conceded he was convicted of assaulting the mother whilst she was pregnant with Jessie. For the first time, in this hearing, he alleged she attacked him first. His evidence appeared to be a belated attempt to put the mother’s evidence concerning his violence in a different light. I do not accept the father’s evidence that the mother attacked him first. Notwithstanding the mother’s affidavit evidence concerning the father’s approaches to her at Penrith Local Court, he behaved in the same fashion at this hearing. The father spied the mother sitting alone waiting for commencement of the matter. Although there were many other available seats, he sat next to her and remained by her side until she moved away. Interestingly, the father’s cross-examination of the mother focussed on his attempts to persuade her to acknowledge their friendship and that she was equally responsible for his contact difficulties. The father’s cross-examination of the mother was unusually personal and intimate. Other than Jake, the father has no family in Australia and appears socially isolated. I was left with a strong sense that the father wishes to resume his relationship with the mother and if this is impossible, he wishes to spend as much time with Jessie as possible.
Questioned about his understanding of Jessie’s developmental needs and attachments, the father claimed she is primarily attached to him because he was her primary carer. Because the father appeared to lack an even rudimentary understanding about young children’s attachments, I provided him with a paper[1] by Vincent Papallao called “Shared parenting – one size does not fit all”. The author discusses children’s attachment and developmental needs. When the hearing resumed after lunch, the father remained unable to discuss attachment and appeared at a loss about Jessie’s developmental needs. Even though Jessie has lived with her mother since birth, the father was unable to concede Jessie is probably most strongly attached to her mother. In my view, the father analyses Jessie’s needs, by reference to his own. I was left with a strong sense that contact is more focussed on the child meeting his emotional and psychological needs, rather than hers.
[1] Delivered NSW Legal Aid Commission annual family law conference 2006
Shortly before the matter adjourned, I explained to the father that he should seriously contemplate participating in a father’s parenting program such as those run by Burnside. Essentially this seemed an appropriate way to link him into community supports as well as afford him the opportunity to enhance his parenting skills. The court provided him with relevant brochures and contact details and I hoped on the adjourned date to hear the father had made contact with Burnside or another similar agency. Unfortunately the father made no mention of pursuing this recommendation and I infer he has not.

The mother’s circumstances

The mother was born in 1974. She lives with her six children at Windsor. The mother does not have paid employment and is a full time home maker and parent. She is committed to her children’s welfare and is an effective and loving parent to Jessie.
The mother’s children from earlier relationships are Kara born in 1993, Zoe born in 1995, Rachel born in 1998, Alexa born in 1999 and Jaime born in 2001. DB is Kara and Zoe’s father. DB lives in Wagga Wagga and the children see their father once or twice each year. Rachel’s father is JE. JE also lives in the country and Rachel has not seen him for about 12-18 months. The mother understands JE plans to visit Rachel some time before Christmas 2006. Alexa and Jaime’s father is LM. LM has reasonably regular contact with his children.
The mother is profoundly concerned about the father’s contact with Jessie. Until the 2 November 2005 incident, although there were occasional problems with contact, by and large she believed contact was working well. The mother put aside her concerns about earlier domestic violence and believed the parties had established a healthy framework for Jessie’s contact with her father. However because of the explosive nature of the 2 November 2005 incident, the mother is genuinely afraid the father will harm her, Jessie and perhaps himself. Questioned about supervised contact as a final order, the mother explained she did not know how to decide when and if Jessie would be safe with her father.

Conclusion

Cases which focus upon the risk of domestic violence can be very difficult. By its nature, domestic violence often takes place in the privacy of the family home. Frequently there are no witnesses to the event and the court is left to determine accusation and denial reliant solely upon the evidence of two participants. The father presented his case on the basis that the mother’s allegations are her word against his. The mother encouraged the court to examine surrounding circumstances when assessing the probability she was telling the truth.
Concerning the first allegation of domestic violence, the father was convicted upon his own guilty plea. Without corroboration the mother attacked him first, I am unwilling to accept his present version of the incident. It smacks of recent invention. His argument that the mother falsely accuses him of attacking her with a knife on 2 November 2005 in order to limit his contact makes little sense. By the April 2004 orders, the mother agreed to regular contact. Subsequently she facilitated more contact than she was obliged to give. Her actions in doing so are inconsistent with the father’s hypothesis. When one reads Kara’s statement there is little room for doubt that the mother experienced something frightening in the father’s behaviour on 2 November 2005. When, on 29 September 2005 the father refused to return Jessie, the mother remained calm and sought police assistance. She makes no accusation concerning threats from the father on that occasion. If she was motivated to stop his contact, or simply make his life difficult, here was an earlier opportunity to do so. These surrounding circumstances suggest the mother is being truthful about the events of 2 November 2005.
In her closing address the mother’s counsel emphasised the explosive nature of this incident. The mother is now genuinely frightened for Jessie if contact is unsupervised. Simply put, her confidence in the father’s ability to behave appropriately during contact has been shattered. From her perspective she finds it difficult to analyse when unsupervised contact may again be appropriate. I understand her dilemma. Although the father panicked when Jessie suffered a febrile convulsion, this is the only incident during unsupervised contact he was unable to handle. I agree with the mother’s evidence that the father’s description of sitting Jessie on a kitchen bench next to a stove while he was cooking demonstrates lack of basic child protection principles. However, as far as this sort of issue is concerned, he is undoubtedly capable of learning child safety.
It is the father’s behaviour towards the mother and his willingness to include Jessie in his dispute with her mother which particularly concerns me. Having watched the father and listened very carefully to his evidence I was left with real unease about attitudes towards the mother. In my view the evidence suggests unsupervised contact presently exposes the mother and child to an unacceptable risk of harm.
As a general proposition if the court can only see limited supervised contact for years to come, the court must seriously consider ordering against contact. In this case, however, I believe the father and child should have a further opportunity for the father to pursue contact. I am unashamedly pro contact. Before the court denies a child a proper relationship with its parent, the court must be strongly satisfied this is in the child’s best interests. There are a number of factors which would favourably influence me to order unsupervised contact. Firstly the father needs to see a psychologist or psychiatrist to work though his feelings for the mother. In this hearing, his case would have been materially enhanced by a psychiatric report which addressed his psychological well being, as well as by evidence which showed greater insight into the effect his behaviour has upon others, particularly the mother and her other child. As I indicated earlier, I would like to have seen the father complete a father’s parenting program of the type run through Burnside. Finally, more time needed to pass with the father demonstrating his ability to exercise regular contact, without incidents involving the mother and her elder children.
In my view the court should maintain supervised contact while simultaneously giving the father another opportunity to demonstrate his capacity for safe contact. Supervised contact should not last indefinitely. The father should have a proper amount of time to seek the assistance to which I have made reference, but not so long a period that he avoids the issue. With only limited financial means and six children to care for, the mother cannot be expected to interminably travel between Windsor and Harris Park for contact. It is simply too onerous. While Jessie is coping with supervised contact the evidence does not indicate that she finds it particularly pleasurable. A more accurate description would be that she appears to be coping with it. Ten months gives the father ample time to seek assistance and finalise his criminal proceedings. Provided supervised contact occurs once each two weeks, Jessie’s relationship with her father will be maintained, even if the setting is unlikely to see it flourish. Of course this means that, unless the parties reach agreement, there will be future litigation. Although this is regrettable I believe this offers the safest and most appropriate course.
Although it weighs heavily on me, if the father fails to seek assistance after ten months his contact orders will be discharged. Should this occur further contact would only be considered on a fresh application demonstrating a relevant change in circumstances. As must be clear, I encourage the father to seek assistance and relist the matter after doing so. This will place him and the court in the best position to promote his future contact with Jessie.
For these reasons I make the orders identified at the start of this judgment. I am satisfied they are in the child’s best interests.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 6 June 2006