NEWMAN & NEWMAN

FAMILY COURT OF AUSTRALIA

NEWMAN & NEWMAN

[2011] FamCA 353

FAMILY LAW – CHILDREN – Where the mother has been the primary care giver since separation – Where the father has had mostly supervised time with the two children of the marriage – Where the father has been convicted of child sex offences which prohibit his spending time at any Contact Centre – Where the father’s evidence was at all times inconsistent – Where father’s ability to care for the children is in question – Where parents live in separate localities and both refuse to relocate – The mother proposes the children continue to live with her in the area she has lived since separation – The mother and father agree to an order for equal shared parental responsibility – The mother proposes the children spend time with the father on alternative weekends and holiday periods, but in daytime periods only – Where the mother submits that all time spent with the father be supervised – Where the mother and father agree to potential arrangements for private supervision – Where the mother proposes supervised time cease when the youngest child turns 12 years old.

FAMILY LAW – ORDERS – Draft orders are proposed, with final orders to issue following submissions from the parties and the independent children’s lawyer – Mother and father to have joint parental responsibility – Children to remain living with their mother – Children to have supervised, daytime contact with the father on alternative weekends – The father is to bear the transport costs associated with spending time with the children – The mother may elect to graduate the children’s time spent with the father to become unsupervised – Telephone contact is permitted between the father and the children at agreed times.

APPLICANT:

Mr Newman

RESPONDENT:

Ms Newman

INDEPENDENT CHILDREN’S LAWYER:

Mr Kingston, Solicitor

FILE NUMBER:

BRC

7151

2008

DATE DELIVERED:

18 May 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

27 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

The Applicant Father appearing in person

COUNSEL FOR THE RESPONDENT:

The Respondent Mother appearing in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Shoebridge of Counsel appearing for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston, Solicitors

ORDERS

The reasons for judgment are published from Chambers with the matter to be relisted at 10.00 am on 26 May 2011 at the Brisbane Registry of the Family Court to receive submissions on the final form of orders.

It is noted that publication of this judgment under the pseudonym Newman & Newman is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7151 of 2008

Mr Newman

Applicant

And

Ms Newman

Respondent

REASONS FOR JUDGMENT

The parties are the parents of two children, R born in December 2003 (currently aged 7) and P born in January 2006 (currently aged 5).
The parties met in early 2003 and cohabitation commenced shortly thereafter.
They married in April 2005 and separation was in late April of 2008.
I note in the various Court documents and exhibits, different spellings are given for some names.
Consistent spelling has been adopted in these reasons. I have not bothered to incorporate “sic” at any time quotes in the reasons provide a different spelling but the quote has been reproduced as is.
Since separation the Mother has been the primary care giver. The Father has had limited mostly supervised time with the children.
There have been a number of reasons for his time being supervised.
The Father has a conviction for carnal knowledge of a girl under the age of 16 years together with other associated criminal charges including indecent dealing and incest. He pleaded guilty to those charges in 1998 and received various terms of imprisonment, as a result of which he was incarcerated for approximately two years. One consequence of this is that he will not be eligible to spend time at a Contact Centre, as the rules of most Contact Centres do not allow acceptance into the Centre’s program of individuals with convictions of this nature. If he is to see the children on a supervised basis, he will have to make private arrangements.
The Mother says (first report of Mr N at paragraph 7) her explanation why the Father only spends supervised time with the children was because he poses a risk due to his criminal history. In response the Father says the Mother has always known full details of his criminal history and it never made any difference to her prior to separation. It does seem somewhat ironic that she should share accommodation on a full time basis with the Father allowing him unlimited access to the children, presumably with many periods unsupervised, yet upon separation there should be a need for supervision arising out of facts of which she had at the very least some knowledge during the time of cohabitation.
It would seem that at the time she commenced the relationship she may not have been fully conversant with the serious nature of the criminal charges preferred against the Father in 1998.
The Mother says the reason for the separation was acts of domestic violence by the Father in damaging furniture and threatening to assault her. For his part the Father denies engaging in such behaviour. It is noteworthy that the Mother does not attribute the ground of separation to being informed of his past criminal history. This appears to have been only a secondary factor.
Both parties are in receipt of pension benefits. The Father works part-time as a gardener and doing pool maintenance for which he earns approximately $15,000 per year. The Mother is engaged selling Avon products for which she earns approximately $2,000 per year.
The trial proceeded before me on the 27 January 2011. Neither party was legally represented. An Independent Children’s Lawyer had been appointed to represent the children and Counsel had been briefed for the hearing.

Witnesses

The only witnesses for the parties were the parties themselves.
The Independent Children’s Lawyer called evidence from Ms T who had previously been a supervisor of time spent by the Father with the children and Mr N a social worker who had prepared two family reports in the matter. The first report is annexed to an affidavit filed 31 April 2009 [sic] and the second filed 21 January 2011.
Dr M, psychiatrist, prepared a medical report which was relied on as evidence but she was not required for cross examination.
A family consultant with the Court, Ms O, prepared a report of the 21 July 2009, having seen the parties and the children on the 14 July 2009.

Ms O was not required for cross examination.

Orders Sought

Father

The Father has not filed any material in response to trial directions made. The Father is both illiterate and innumerate. He has a number of other vulnerabilities referred to in the evidence which I shall elaborate on in due course.
His position, as I understood it, was that the Court should order the children to live with him in Town 1 where he has resided in the former matrimonial home since the time of separation. It is a three bedroom Housing Commission home which he has been able to keep on the basis that the Court proceedings have been ongoing, and at the very least he expects to have the children regularly visiting him in Town 1.
He is adamant that he cannot afford to live anywhere other than Town 1. His view was that the children could spend time with their mother every second weekend, or, “whenever they want to see her”. If the Mother moved to Town 1 she could see the children for two weekends out of three. Later in his evidence he suggested that if she did move up to Town 1 they could share the care of the children week about.

Mother

The orders sought by the Mother are set out in her case information document filed on the 2 December 2010.
She proposes that the children continue to live with her in the Brisbane Suburb 1 area where she has resided since shortly after separation. She proposes that there be an order for equal shared parental responsibility; that the children spend time with their father from 9.30 am until 5.00 pm on the Saturday and Sunday of alternative weekends and have telephone communication, “at all reasonable times”. She also proposes daytime holiday periods and arrangements for special time such as Father’s Day, Easter and Christmas.
She further proposes that providing he gives sufficient notice he could see the children in the Brisbane Suburb 1/Brisbane area on additional weekends – daytime only. She is insistent that the Father’s time be supervised. Her proposal in relation to this is to be found at paragraph 4 of the case information document in the following terms:
“That the Father’s time with the children pursuant to paragraph 3 above shall always be supervised by [Mr T] and/or [Ms T] or such other supervisor as is agreed in writing between the parties and shall during school term time always take place at [Brisbane Suburb 1] with the Father to give to the Mother and the supervisor not less than one week’s written notice of his intention to spend time with the children pursuant to these orders.”

Independent Children’s Lawyer

At the conclusion of the case the recommendation of the Independent Children’s Lawyer was that the children should continue to live with their mother and the Father’s time with the children should continue to be supervised for an extended period of time.
It was the Mother’s proposal that the Father’s time should cease to be supervised when P turned 12 years of age.
Why the Mother would propose that P’s time with the Father become unsupervised at a time when she is likely to be most vulnerable was never clearly articulated by her. At paragraph 37 of Mr N’s first report the Mother reports she was sexually abused by one of her Mother’s boyfriends at age 12.
I note on page 4 of Ms O’s report, when interviewing the Mother, she records:
“She claims she has safety concerns for [P], fearing that when she is an adolescent she may be at risk of sexual abuse by [Mr Newman] given his past convictions for carnal knowledge and indecent dealings with his previous step-daughter who was aged thirteen at the time.”

Profile of the Parties

There is an 18 year age gap between the parties. Neither party presented as a reliable historian in the sense that their evidence could be accepted unequivocally on all aspects. By and large I found the Mother’s account of events to be far more reliable.
I propose to elaborate on this aspect in more detail but in noting reservations about the Mother’s evidence, I refer in particular to the account given to

Mr N in the preparation of his second report (paragraphs 29 and 30) of events when she travelled to Melbourne in 2009. Similarly, events recorded by the Father appear on occasions to border on the improbable.

Joint or Sole Responsibility

As I have noted the Mother was prepared to concede there should be an order for joint parental responsibility. I was not entirely confident that she fully understood the significance of this but clearly it had been considered at a time when she was legally represented.
There was no position adopted by the Independent Children’s Lawyer opposing the Mother’s proposal.
In a case summary document filed on behalf of the Father on the 26 October 2009 he likewise proposes an order for equal parental responsibility for the long term care, welfare and development decisions relating to the children.
The Father at that time continued to be represented by solicitors in the Town 1 area.

Profile of the Father

The Father was a thalidomide baby with the most obvious physical consequence of this being what Dr M described in her report (page 2) as
“…an attenuated left arm”.
She also observes, presumably from self reporting by the Father, that he has:
“…poor eyesight and a hole in his eardrum”.
The other difficulties social, physical and psychological that the Father has include:
·He is illiterate and innumerate.
·He suffers depression (self reported – refer Mr N’s first
report at paragraph 11).
·He has problems with aggression – this is noted by the various
report writers and the Father himself. At times he is prepared to
acknowledge that this is the case.
·He appears to have had an unhappy childhood where he was
subjected to many changes of residence and attended 14 different
schools.
·He says he was subjected to sexual abuse on a significant number
of occasions from the age of four or five up to about the age of 14, by a number of perpetrators.
·He has impulse control problems (refer Mr N’s first report
at paragraph 24).
·He suffers low self esteem (refer Mr N’s first report at
paragraph 43).
·He sustained a serious injury to his right knee in a work place
incident.
The Mother has a range of vulnerabilities described in the following terms in Mr N’s first report (paragraph 36):
·The Mother is assessed as having learning difficulties.
·She is described as shy.
·She was sexually abused at about age 12.
Dr M observes that she suffers low self esteem.
She is alienated from her mother. It is likely that her mother has problems with mental illness.
In the final paragraph on page 6 of her report Dr M makes the following observations when discussing the Mothers’ profile:
“At interview she was reasonably well groomed. She was pleasant and polite. She gave a bland, uninformative, simplistic history. She does appear to have some cognitive deficits. There was no disorder of mood or perception.”
Dr M’s description of the Father at page 4 of her report is in the following terms:
“At interview he was voluble, excitable, gave a history which was somewhat chaotic. He had a large amount of papers which he shuffled continuously and wanted me to read. He has as noted an attenuated left arm. He presented as moderately obese. He was frequently tearful. He demonstrated lability of mood. He appeared irritable.
His speech and vocabulary suggested some cognitive deficits. It is of concern that his history indicates sexual abuse of a minor. He made great use of projection and tended to see himself as a victim.”

Father’s Criminal History

Counsel for the Independent Children’s Lawyer made reference to two factors militating against an order for the children to live with their father.
The more recent factor is the Father’s obvious lack of experience in raising children as a single parent, coupled with his seeming lack of interest in them on occasions.
The other relates to inappropriate dealing with his step-daughter from an earlier relationship when she was 13 - 14 years old, to which reference has previously been made.
I propose to examine the exhibits which have been tendered in relation to this criminal history.

Exhibits – Criminal History

The first thing to be observed is that the offences occurred in 1997 and since his release from prison in 2000, he has not had any other convictions of any kind, nor is there any evidence he has engaged in sexually inappropriate conduct since his release.
Circumstances of aggravation include the fact that he was in a parental role with the child being in a defacto relationship with her mother. He later married the mother and he continued to have intercourse with the child which led to him being charged with incest, for which he received the heaviest sentence of five years when he pleaded guilty in the District Court in 1998.
Another aggravating factor is that an inference would be drawn that he invited/allowed an adult male acquaintance to have sexual relations with the girl shortly after he had intercourse with her one evening in the house in which they resided.
Exhibit 3 (paragraph 1.3.3) under the heading “Prisoner’s Version” gives the Father’s version in the following terms:
“Prisoner’s Version:
…
The inmate is now aware that another male who had been a houseguest also had intercourse with the step-daughter, but he denies having suggested that he have sexual relations with her. [Mr Newman] claims that he had asked him to go to talk to the step-daughter because she had been upset about something at the time. He believes that she and the young male had already established a relationship.”
I am unable to make a finding in relation to the veracity of this account given by the Father.
When questioned by police after complaints were made to them, he initially denied the complainant child’s allegations. The reality is the complainant child was pregnant. The child when born was diagnosed with cerebral palsy. He has not seen the child, nor has he provided any financial support to the child or the mother at any stage.
Exhibit 3 is the police assessment report dated the16 June 1999.
Under the heading “Summary” in paragraph 5 the report concludes:
“Summary
…..
Since imprisoned, [Mr Newman] has incurred no breaches. He has either been employed or enrolled as full-time student. The inmate has completed the Cognitive Skills Program and is scheduled to commence the Sex Offender Intervention Program during August. When interviewed, he impressed as being committed to living a law-abiding lifestyle in the future. The programs and courses he will have done may provide him with some skills which will make his goals more achievable.”
Exhibit 2 is a Sex Offender (Exit) Report dated 10 March 2000.
In the final paragraph on page 2 of this report it is noted:
“[Mr Newman] more than satisfactorily acknowledged the planning and grooming associated with his sexual behaviour towards his victim. He satisfactorily acknowledged that his intra-offence cognition contained a theme of “having it all”. This condition also appears to have been a perpetuating factor in the cycle of sexual offending. He acknowledged that his intra and post offending affect was excited and positive, and that his behaviour following each sexual assault was manipulative. For example he described how on many occasions he rewarded his victim by giving her gifts, or by not reprimanding her for inappropriate behaviour. These rewards, he acknowledged, were facilitated to reduce the risk of his victim disclosing the abuse.”
At page 8 under the heading “Assessment of participant’s overall response to the Program”:
“[Mr Newman’s] disclosures and responses, satisfactorily converged with the program objectives as they relate to the purpose of the Sexual Offender Intervention Program. He demonstrated overall a clear comprehension of the program concepts presented. His application of these to his offending behaviour and personal situation was generally comprehensive and in the majority of times demonstrated particular detail and insight. He developed a sexual assault cycle which he was able to integrate with relapse prevention concepts to a sound standard. [Mr Newman’s] overall contributions demonstrated a high degree of provision of both offence-related and offence-specific material.”
The authors of this report were Ms H a Correctional Counsellor and Mr C a Psychologist who regularly provides reports and gives evidence in this Court.
A request was made for funding for Mr C to do an updated assessment of the Father but such funding was not forthcoming from Legal Aid Queensland.
Exhibit 1 is a Sex Offender Report dated 20 May 2003.
At page 1 of this report under the heading “Major therapeutic gains for Participant” it is noted:
“…
During Session 2 participants were asked to provide information relating their offending behaviour and their individual Relapse Prevention Plan. [Mr Newman] demonstrated an awareness and understanding of how events leading up to the offence had contributed to his behaviour. He acknowledged that he had formed a close relationship with the victim based on an ability to relate to her experiences. His statements indicated that this emotional immaturity had led to his feeling a strong association with her and through this relationship his emotional needs were met. At this stage [Mr Newman] identified being unsupervised around children as his primary high-risk situation.”

On page 2 of the report under the heading “Significant issues for Participant during the program” it is noted:
“Throughout the program facilitators were consistently concerned with [Mr Newman’s] level of self-esteem and his relationship skills. He reported that his offending was related to his receiving emotional comfort to assist him to cope with feelings of anger and depression as a result of being taunted or belittled by other adults in his life. It appears that the relationship he formed with his victim allowed him to feel needed, as well as to receive support. Of significance in this relationship and also it seemed within current relationships is the issue of co-dependency. It appears that as a result of his low self-esteem, [Mr Newman] has a strong desire to be liked by others and this may make him vulnerable to being wrongly treated or manipulated by other individuals. [Mr Newman’s] inability to discuss issues that led to his becoming emotional and upset within the program also raised concerns as to his confidence to discuss or manage these issues.”
I would have to record that there is a high level of consistency between the observations made in the reports referred to in exhibits 1, 2 and 3 and the reports before the Court in these proceedings, being the two reports from the social worker Mr N, from the family consultant Ms O and the psychiatrist, Dr M.
There is one aspect that has not been elaborated on. There is an element in the Father’s behaviour of wanting to be a “white knight” to rescue women in distress. The obvious example was the time when he went to live with his cousin. The cousin was engaging in domestic violence towards his wife and it is this woman that he subsequently established a relationship with and then betrayed the relationship by simultaneously having an ongoing relationship with her teenage daughter.
Since the termination of the relationship with the Mother in this matter the evidence would indicate he has been involved in two other relationships. One a relationship with a woman named Ms B who was facing serious criminal charges relating to abuse of her children. The Father’s evidence is that he terminated this relationship after about a fortnight when he received details of the nature of her charges. It appears that he maintained some form of contact with the woman’s father, as the evidence would indicate they had been fishing together at some stage.
There was a further relationship with a woman named Ms D. His knowledge of Ms D was that as a young woman she had been sexually abused by her step-father.
Exhibit 4 is the Queensland Police Service file. It details a complaint of common assault in 2009 at a service station. It appears that it was Ms D’s step-father who was the alleged victim on this occasion. There were no charges laid, but once again it tends to reveal the Father becoming angry/resentful towards somebody who allegedly has abused a person he has known.
Exhibit 5 in the proceedings is the Department of Communities (Child Safety Services) file which provides details of the notification received in September 2009 relating to the Mother’s re-settling in Melbourne and then sending R to travel alone to be with his father.
There are also concerns raised (most probably by the Father) that the Mother’s partner some time after separation was smoking and swearing in front of the children. Exhibit 5 contains further evidence of the observations made in the various reports of the Father being quick to take offence and to make reports mainly to the Police Department of his children being abused or subjected to physical violence.

Overall Profile of the Father

Mr N (transcript page 83) in the course of his oral evidence described the Father’s presentation during most of the interview as, “irritated”. At transcript page 85 he also described the Father was someone who was, “quick to take offence”.
My own observation would indicate that the Father was in many respects an apologist for himself. He is someone who is emotionally immature and prone to become involved in co-dependent relationships. Evidence of blame is almost always to be found somewhere else but in other respects he develops a, “she’ll be right” attitude.
I stressed to the Father during the course of his oral evidence the importance of his evidence being truthful.

Credibility of Father

There are a number of aspects which I will detail which gave me considerable concern as to the reliability of the Father’s evidence.

Dr M’s Evidence

In the final paragraph of page 3 of her report in relation to the Father’s brief relationship with the woman “Ms B” she reports:
“He has a new girlfriend [Ms B]. He said however that her church and her father had split them up. They were together for about 3½ weeks and he was with her until 3 weeks ago. He met her at a support group which he goes to, recommended by his psychologist. He stated that [Ms B] was going through Court at the moment because she has been accused of sexually abusing her children; one charge of torture has been dropped. He stated that it was alleged that she had digitally penetrated the child. She according to him was doing this to remove faeces when the child was constipated and he said he had to do this with [R] and [P] and [the Mother had done it too. The hospital apparently notified the child had a laceration in the anus and [Ms B] has been charged.”
In the course of his oral evidence the Father was questioned about this (transcript page 52). He was asked:
“Mr Shoebridge of Counsel: Do you remember telling all that to [Dr M].
[The Father]: I remember talking about it, but I didn’t have to – I didn’t penetrate my kids to get the poo because we ended up taking them up the hospital because it was – they were just clogged up.”
Later in his evidence (transcript page 52):
“Mr Shoebridge of Counsel: …You told [Dr M] that you had had to do this with [R] and [P] and [the Mother] had done it too. Have you ever inserted your finger?
[The Father]: No, I have not. I told her that the kids had the same problem and that we ended up taking them up to the hospital. And if she hasn’t written that down in the report, well, I don’t know. But the report is up in the [Town 2] Hospital because we had to take [R] up there because she was constipated and they put a suppository. And they gave us one to take home to put.”
The evidence of the Mother was she had never had to take the steps described by the Father and to her knowledge he had never done that either.
One likely explanation for the Father’s statements to Dr M would be as a way of being an apologist for Ms B in relation to the charges that she faced. He sought to be identified with her conduct as being one that was capable of reasonable explanation.
I accept the accuracy of what Dr M has recorded in her report quoted at paragraph 72 above. The inconsistencies in the Father’s version to

Dr M and in his oral evidence is a concern that reflects poorly on the reliability of his evidence generally.

The Alleged Trust Fund

In the Sex Offender (Exit) Report dated 10 March 2000, he informed the report writers that he had set up a trust fund for Ms S the mother of the child born with cerebral palsy.
In the course of his oral evidence (transcript page 60) he denied that he had set up a trust fund but indicated he wanted to make up a trust fund but did not have any money and was subsequently declared bankrupt.
This is yet another instance where the Father asks the Court to find that in the Sex Offender (Exit) Report he has been inaccurately reported.
I prefer the evidence as set out in the Sex Offender (Exit) Report dated 10 March 2000 to the, at times, quite inconsistent evidence, of the Father.

Father’s Evidence Re: Knowledge of R’s School Report

The Father’s explanations to the Court and the report writers were often long winded and unconvincing. He claimed he had not read the school report for R which had been sent to him by the Mother’s solicitors quite some time prior to the trial.
When asked why he had not had one of his support group in Town 1 or some other acquaintance read the report to him, (at transcript page 26) he replied:
“Well, I only got this, like, only a few weeks ago, and with everything going on – because I haven’t just got this. Someone said to me from church I need to put some stuff aside, you know, and I said, “Well, I can’t, because I have got lawyers in Melbourne.” That’s why I come down at 1 o’clock yesterday morning, because I have been to [Town 2] hospital – I have been to two hospitals in [Town 2], [Town 3], [Brisbane Suburb 1], [Town 4] – all the surgeries, because the lawyers in Melbourne want to – and I drove down to [Hospital 2] to just get the information for the lawyers in Melbourne that are doing the class action on thalidomide for me. So – and yes. I have got that as well, and – but I have said to them that I need to – yes, I have just got to put me kids first and start thinking about them.”

Evidence Re: Father’s Ability to Care for the Children as a Single Parent and Level of Commitment to them

Clearly the status quo in this matter favours the Mother as the children have resided predominately with her since separation.
The Father would have the Court believe that for the first 12 months after separation he saw the children on a regular basis unsupervised. The evidence of the Mother is that he saw the children quite infrequently.
The Mother’s evidence (transcript page 81) was:
“[The Mother]:        …he has only had a couple of visits unsupervised in that first 12 months.…I think one or two were overnighters, but they weren’t…
His Honour:            How often were – once a month, once every two months?
[The Mother]:         One was one month, and I think it was a few months later before he had another lot.”
This portrays a completely different picture to the one presented by the Father. I prefer the account of the Mother.
When questioned by Counsel for the Independent Children’s Lawyer the Father was unable to give any information as to the children’s general practitioner, the paediatrician or the speech therapist. He did not even know the name of the school that R attended. He had not made enquiries of schools in the Town 1 region. In relation to this last aspect I am prepared to give some weight to his evidence that he had been told by friends not to make those enquiries until he received a favourable decision from the Court so as, “not to build his hopes up”.
Whilst I can accept that such enquiries can be made within a reasonable time frame, it does not explain why over such a lengthy period of time the Father has taken such little interest in his children. Whilst he may have been distraught after the separation, it would appear he has not made much of an effort to be informed about details of his children’s lives or important issues such as education and health.
Balanced against that he has regularly maintained phone conversation with the children and the Mother concedes that he has a good relationship with the children and they very much wish to see him.

Wishes of the Children

In considering the evidence of the wishes of the children there is considerable consistency in the reports by the three report writers, Mr N,

Dr M and Ms O.
The reports consistently confirm that R is wanting to see his father and at an appropriate time wants to go and live with him. P likewise, despite moments of ambivalence, also appears to be closely bonded to her father, misses him and wants to spend more time with him.

Mr N First Report

At paragraph 58 of this report, Mr N observed:
“58.Both children were extremely pleased to see their father, responding affectionately. [P] sat on his lap and [R] hugged him and immediately began playing with him. Over the course of their play with their father they were responsive and involved. As he had not seen the children for some time, [Mr N] was slightly emotionally, [sic] but not to the extent that it was noticed by the children.”

Dr M Report Dated 26 March 2009

At page 4 of Dr M’s report she recorded the Mother as saying:
“She said [R] wants to see his father is tearful, has tantrums, throws his toys around. She said she encourages the child to hit his pillow. [P] does not demonstrate any behavioural abnormalities but [R] is seeing a counsellor attached to her domestic violence service.”
There was no challenge other than this is what the Mother had told

Dr M. I draw the inference that R is encouraged to hit his pillow as a way of releasing his frustrations at not being able to see his father.

Report of Ms O of 21 July 2009

At page 2 of this report under a series of dot points Ms O records:
·“[R] misses spending time with his father and expressed this in
a number of ways including stating that when he is older he wants to live with him.
·[P] (aged 3 years and 6 months) was too young to formally
interview but was able to interact through play in interview with
her brother. [P] presented as a sweet and lively child who
displayed age appropriate initial wariness of me but after a while
“warmed up” to show she is actually quite confident and assertive
in manner. She appears to be commensurate with the development
norms for her age.
·It seems that the parents’ dispute has also had an impact on
[P]. At times she demonstrated strong regard for her mother, preferring to draw her mother to her father but whilst with her father demonstrated a strong attachment to him as well. [P’s] demeanour with her father was relaxed, spontaneous and affectionate. She became somewhat distress [sic] when it was time
to farewell her father, clinging to him and stating she wants to be
with him. Her desire to demonstrate to her father that she misses
him and loves him was strong enough that she began denigrating
her mother to her father. This behaviour by [P] was congruent
with [the Father’s] actions; when either child showed him physical
affection he would say to them statements such as, “yes I know you
really love your dad don’t you”, or, “I know it is hard (referring to
the fact that they do not see him very much) but you know Daddy
can’t help that”.

Mr N Second Report

This report was dated 20 January 2011. The interviews for the report occurred on the 13 December 2010.
At paragraph 29 of the report Mr N records when discussing the Mother’s account of sending R to his father from Melbourne to Town 1 in August 2009 in the following terms:
“29.The context of this situation was that [the Mother] had already sent [R] to stay with his father, flying him to Brisbane unaccompanied. She initially explained that she did so because [R] fervently wanted to spend time with his father, but then added that it was also because she was having trouble with his behaviour. She conceded that these two issues had been a constant in any case – that he had always wanted to spend more time with his father and that she had been having problems with his behaviour over time. The other issue was that she was having problems coping.”

Ability of Either Parent to Relocate from Present
Residence

The Father advanced a range of reasons why he could not/would not relocate from Town 1 to Brisbane Suburb 1. Some of the reasons were more convincing than others – they included:
·He cannot afford the move.
·The cost of living is more expensive in Brisbane Suburb 1.
·He has the use of a three bedroom Housing Commission at the
moment. There is no guarantee he would receive Housing
Commission accommodation in Brisbane Suburb 1. (It is noted that the Mother has to rent privately in Brisbane Suburb 1 with the care of two small children for which she receives no support from the Father).

Because of the coal mines in Brisbane Suburb 1there is greater smog with the result the children are more likely to sustain asthma attacks. I note there is no medical evidence to support this assertion by the Father. There is no evidence the children are suffering asthma attacks to any extent greater than when they lived in Town 2 or Town 1y.
·He has lived all of his life in the Town 1 area.
·The children want to live with him in Town 1.
·He has friends and a support network in the Town 1 area.
·He has part-time work in the Town 1 area.

Notwithstanding that some of the reasons advanced are child focused, the overwhelming impression I gained was that the reason the Father would not move to be closer to his children was because he is putting his own interests first.
The Mother lives in Brisbane suburb 1. She has family support there. The children are attending school and pre-school in that district. I expect that if the Father’s application for the children to reside primarily with him was to be successful she would move to be close to them, but the Father himself accepted the prospect of success in his application for the children to reside with him was remote (refer transcript page 107 – top of page).

Evidence of the Mother

By and large I found the Mother to be an honest witness. The explanation for events surrounding the move to Melbourne is probably best seen in the interview with the Child Safety Officers in the Department of Communities (Child Safety Services’) file (exhibit 5). It would seem from that interview she had reached the end of her tether or to use another lay description had a breakdown and was unable to cope. The Mother regretted her actions and expressed appropriate remorse for them.
There are many positive aspects of the Mother’s care of the children. The evidence would indicate she has taken them to appropriate medical care including specialist care, a speech therapist and occupational therapist.
She has borrowed books for the children (transcript page 67). She was aware that R was anaemic as a result of an iron deficiency and had then taken appropriate remedial steps.
Her evidence was she has her father and sister residing in the Brisbane Suburb 1 area and the inference was she enjoys a reasonable relationship with them.
I am inclined to accept her evidence (affidavit filed 23 November 2010 at paragraph 4) that she was the primary care giver of the children notwithstanding the Father’s claims that he did much of the housework and cooking. The Mother’s account at paragraph 5 is:
“5.…I say that when the Applicant was at home he would only occasionally help with household duties or with caring for the children. …”
There is no evidence the Mother has in any way alienated the children from their father, indeed the evidence would indicate to the contrary in that she has allowed regular telephone contact and has permitted supervised time to be spent with the children.
Other evidence which would indicate the Mother behaving in a reasonable,

co-operative fashion is as follows:

On the date of separation she asked the Father to care for R for a few days while she found suitable accommodation. She gave him $150 to assist him with the expense of caring for R over that period of time (paragraph 11 of Mother’s affidavit).
·She has never interfered with the regular phone calls to the children
from the Father although she would prefer he calls at a more
regular time.
She is not opposed to Mr T and Ms T as supervisors even though Mr T appears to be a close friend of the Father.
·She has kept the Father informed of the children’s medical
treatments (paragraph 17).
·Her solicitors forwarded R’s school report to him.

When asked in the course of her oral evidence if she would contemplate unsupervised time she said, “I will” (refer transcript page 63).
She has undertaken courses in the past. She is working assiduously to be self supporting in the line of employment she has undertaken and in particular to be engaged in a supervisory role with such employment.
When she was informed her then boyfriend “Mr E” had disciplined the children with a belt she immediately terminated her relationship with him – a text book example of a parent putting the interests of her children ahead of her own interests. The Mother deposes that on the 30 September 2009 she received a request to change the Father’s spending time with the children from a Saturday to Sunday. She was able to accommodate this request (refer paragraph 36).

At paragraph 23 of her affidavit the Mother sets out the reasons why she is seeking an order for the Father’s time to be supervised. These may be summarised as follows:
·A fear he will not return the children.
·She was previously not aware of the serious nature of the offences
committed in 1997.
·She has concerns about inappropriate relationships the Father has
formed such as the one with Ms B in 2009 and is concerned he
may form such inappropriate relationships in the future.

Profile of the Children

I will deal with the observations made in the evidence about the children in a chronological fashion.

First Report of Mr N, Social Worker

Mr N interviewed the parties and the children on the 11 November 2008.
At paragraph 57 he makes the following observations about the children:
“57.They are active and exuberant in their behaviour. [The Mother] was attentive to them, but she appeared to be easily distracted and had difficulty providing attention to both children at the same time. [R’s] language development did not appear to be fully developed for his age, and I did not interview him directly.”

Report of Ms O

In the report of the family consultant Ms O, Ms O interviewed the children on the 14 July 2009. Her report is dated the 21 July 2009. At page 1 of the report (final paragraph) she observes:
“[R] (aged five years and seven months) presented as an active young boy. His small physical stature, immature speech and displayed level of comprehension suggest that [R] may fall below some physical and cognitive developmental normative standards at this stage. [R] was not able to complete a number of child-centred assessment activities formulated for his age group, particularly activities requiring comprehension skills.
Page 2:
“[P] (aged three years and six months) was too young to formally interview but was able to interact through play in interview with her brother. [P] presented as a sweet and lively child who displayed age-appropriate initial wariness of me but after a while “warmed up” to show she is actually quite confident and assertive in manner. She appears to be commensurate with the developmental norms for her age.”

Department of Communities (Child Safety Services) File

The children were interviewed by officers from the Department of Communities (Child Safety Services) in September 2009. On the

23 September 2009 an interview was conducted by Child Safety Officer P and Constable F of the Brisbane Suburb 1 Child Protection Investigative Unit. The file note reads:
“Following the interview SC [subject child] [P] ran to [Constable F] to give him a hug and a kiss on his cheek. SC [P] then ran to the other officers and wanted to hug and kiss all others.”

Second Report of Mr N

In Mr N’s second report at paragraph 39 he observes:
“39.[R] and [P] are very boisterous. Both children displayed a lack of boundaries in that they will enter a room with an unopened door, or even barge into a room when directly told not to do so. Even though [P] had only just met me, she is a very demonstrative little girl and she quickly attempted to sit on my lap and behave in a fashion normally reserved for one who is a close acquittance [sic]. [The Mother] said that [P] often behaved in this fashion and it worried her. She did not correct her until I mentioned it.”
Paragraph 40:
“40.The children were clean and well presented. They were anxious to see their father and aware that he probably had a present for [R] for his birthday.”

Parental Responsibility

As noted previously, each parent was agreeable to there being an order for shared parental responsibility. There was no submission to the contrary from Counsel for the Independent Children’s Lawyer.
This proposal was the subject of a recommendation by the family consultant back in July 2009. At page 5 of her report she notes:
“In light of [Dr M’s] report 3^rd April 2009, Mr N’s report
31 April 2009 and issues identified in this assessment it seems that it is in the children’s best interests if these parents shared parenting responsibility. Both parents in this matter present with a number of issues that may compromise their parenting capacities including [the Mother’s] current unsafe parenting style, [the Father’s] anger management issues and possible mutual cognitive deficits. For these reasons an arrangement where these parents share the responsibility for parenting in terms of decision-making and spending time with the children may be an arrangement that places the least amount of adverse burden on each of them.”
One obstacle to an order for shared parental responsibility working satisfactorily is the distance the parties live apart. The evidence would also indicate the parents do not communicate particularly well, but on occasions have managed to do so.
In some ways, it is almost as if there is a symbiotic relationship between the parents where their cognitive deficits complement each other. It is difficult to explain and it was not particularly adverted to by any of the report writers. I appreciate it is not the case, but by way of example it is almost as if one parent was illiterate but numerate and the other was the reverse.
The Mother is shy and lacks self esteem. The Father is far more outspoken and (overly) anxious to protect his children (and others) from harm. Balanced against this the Mother is cautious, where the Father is far more impulsive.
I am satisfied an order for joint parental responsibility is appropriate. It is most likely the Mother will make the bulk of the decisions but I have confidence she will ensure the Father is informed of any such decisions and would, in appropriate cases, consult with him before making any major decisions in the children’s lives.

With Whom Should the Children Live

I propose to make an order that the children live with their mother. I will canvass the relevant s 60CC provisions when considering what time the Father should spend with the children and whether such time should be supervised.
My reasons for so finding that the children should primarily live with their Mother include:
·She has been the primary care giver since birth.
·She has been the sole carer since separation in 2008.
·The Father has no experience in raising children as a single parent.
·The Father is illiterate and innumerate. He would have great
difficulty in assisting the children with their further education.
·The Father’s personality pre-deposes him to be emotionally
immature and to be drawn into a relationship of co-dependency no matter how inappropriate such a relationship may be. Examples
include:
a.the commencement of the relationship with his cousin’s wife (Ms S’s mother);
b. the commencement of the relationship with Ms S; and
c. the commencement of the relationship with Ms B.
Despite his protestations that he will not enter into any further relationships, the reality is the Father is emotionally a very needy person and it is unlikely he could exercise sufficient self-discipline in the event a particular situation arose. It is unlikely full-time parenting duties would be an adequate substitute for the Father’s needs as described in the various reports.
Given P’s very forward manner with strangers and her emotional attachment to her Father, it is a possibility, albeit a remote one, that the Father would seek to groom her for some future relationship.
The Father makes allegations the Mother overly disciplines the children. There is a degree of corroborative evidence of these allegations. One source of the allegations is to be found in exhibit 5 where R was interviewed by Child Safety Officers on the 21 September. In dot point form, the interview records R as saying:
·“I like my Daddy.
·Mum bees [sic] nasty.
·She smacks – she smacks me.
·[R] pointed at his bottom - Smacked on the bottom with a
wooden spoon (brown) x 1 times.
·I didn’t like it.
·I felt sad.
·No – not sad at the moment.
·I cry when sad.
·Yes [P] gets smacked – She gets sad to [sic].”
There are admissions by the Mother to Child Safety Officers and in the course of her oral evidence she has on occasions physically disciplined the children.

Spends Time With – Supervised/Unsupervised

At the time of separation the parties owned a motor vehicle. Notwithstanding the Mother was to have the care of the two children, the Father retained the motor vehicle. Where the Mother does not have a motor vehicle it seems entirely appropriate that any time the Father spends with the children should either be in Brisbane Suburb 1 or at the very least he should be responsible for all of the transport arrangements.
There did not seem to be any challenge to the contrary in the evidence or submissions made at the hearing of this matter.
I am more than satisfied the children enjoy a close relationship with their father and want to see more of him. I have previously reviewed the evidence relating to the children’s wishes. I have previously referred to the Mother’s concerns as to the necessity for supervision.
I do not accept her concerns about the possibility of the Father failing to return the children at some time in the future. There was one incident in about June 2008 at the time of separation. As soon as proceedings were instituted R was returned to his mother’s care. Similarly in September 2009 the Father voluntarily agreed to return R even though the basis on which the child was sent up to him was not made clear. The Father wishes to see his children and in the event he failed to return them he would appreciate the conditions under which he could see them in the future would be greatly limited.
The Mother’s concerns as to the seriousness of the offence committed in 1997 has to be seen in light of the fact that there has been no repeat offending or evidence of any similar type incidents in the past 14 years. The Father has completed numerous courses including a sex offender’s course and an anger management course (which does not appear to have been particularly successful). The Father has displayed remorse for his conduct, which I find is likely to be genuine. The fear of future imprisonment is likely to be the greatest single deterrent to any reoffending.
As to the Mother’s concerns of the Father entering an inappropriate relationship in the future, I find that there is some merit in this expressed concern. I note the observations made by the various report writers in exhibits 1, 2 and 3. As noted previously, I find a high degree of congruency between the reports written in the time 1999 to 2003 and the reports in the period 2009 to 2010.
I note that Dr M opines (page 7 of her report):
“…It should be noted that there is a high level of recidivism in sexual offenders and it is of concern that he is now partnered with a person facing charges of sexual abuse.”
Balanced against this opinion of Dr M, I note the period of the relationship with Ms B was from two to three and a half weeks and seemingly was terminated when the Father became aware of the nature of the allegations against her. There was also pressure from Ms B’s father and her church. I expect if cross examined, Dr M would have given appropriate recognition to the fact that there has been no reoffending by the Father in the past fourteen years and the prospect of recidivism must diminish over such a lengthy period of time.
One aspect the Mother does not advert to but which I expect is a concern to her is the manner in which the Father influences the children by making inappropriate enquiries about their mother’s household and their treatment in that household. This would be coupled with the Father directly or indirectly playing on the sensibilities of the children to live with him. I doubt the Father’s behaviour would amount to outright denigration of the Mother, but is more likely to be a combination of inappropriate enquiries as to their treatment and pressure to reside with him, by constantly reinforcing to them how much he loves them.
I do not wish to be misinterpreted that it is inappropriate for a father to express such emotions to his children, but there is a suggestion in the material that the Father’s capacity to do so is, “over the top”.
On the issue of spending time with his children the Father did not assist his own cause when he stated in the course of his evidence (transcript page 44):
“[The Father]:  …I’m not going to do another supervision thing. I have jumped this hurdle for two years. I’m not doing it again….
Mr Shoebridge of Counsel:          …If his Honour does require the time to be supervised would you rather not do it?
[The Father]:  I won’t do it. I’m not doing it.
…
My kids were safe, and they are safe all the time with me.”
Immediately after these responses the Father launched into an attack on Counsel for the Independent Children’s Lawyer. It was reminiscent of the criticisms directed towards Mr N. At one stage the Father gave the impression that he did not intend to answer any further questions but immediately resiled from that stance.

Section 60CC Factors

I turn to consider the specific factors that I am required to take into account pursuant to s 60CC (2) and (3).

Section 60CC (2)(a):

The primary considerations are:
a.the benefit to the child of having a meaningful relationship with
both of the child’s parents
The Father has not exactly extended himself in making the journey from Town 1 to Brisbane Suburb 1to see his children. When interviewed by the Child Safety Officers on the 21 September 2009:
·“I have only seen the kids twice in 12 months.
·4 times I have seen the kids in total since we separated.
·After Easter 2008.
·Between Easter and Christmas 08.
·I saw them 3 x times.
·I saw them about 1 month after she left.
·All unsupervised visits.
·I would have whole weekend contact Friday afternoon till Sunday.
·I saw them at [Town 5] McDonald’s x 2 August
·[Brisbane Suburb 1] Woollies car park x1 before Christmas.
·No f to f contact over Christmas.
·2 days after Christmas I saw kids at the shopping centre.
·All supervised.”
Whilst I have not done a comparative study of the Mother’s evidence, this account would generally accord with her account that the Father’s time with the children has been infrequent and spasmodic rather then on a regular basis.
The Mother agreed to the paternal grandfather supervising the children. The Father had a falling out with his father in circumstances that could only be described as fatuous. His initial explanations did not accord with the real reasons ultimately given in evidence, namely a dispute arising from an incident at a red light.
Most recently he has spent time supervised by Mr and Ms T. A few months prior to the hearing he had a falling out with Mr and Ms T in circumstances that could only be described as banal.
To his credit he has now re-established a relationship with them to the extent they are prepared to act as supervisors. Whilst unable to make a finding as to the details of the conversation between Ms T and the Independent Children’s Lawyer when she phoned him to report on conduct by the Father, I record that I was reasonably impressed with the evidence that Ms T gave. Despite having four children to care for she is willing to devote time to help out her husband’s friend.
The final observation to make in relation to the benefit of a meaningful relationship between the children and their father is the Father’s ultimatum to the effect that he will not agree to supervision.
As I observed at the time, the Court will not be influenced by such threats. Whether the Father’s time is to be supervised or not will depend on my assessment of the level of risk the children would be exposed to, having regard to the length of time the Father is to spend with the children and other surrounding circumstances.

Section 60CC (2)(b):

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Ms O in her report at page 2 noted:
“[R] seems to have a relatively thorough understanding of his parents’ dispute. It appears that he is already beginning to compartmentalise his life and feels the adverse pressure of having to pick between his parents. His assessment indicated that he is a young child who already feels caught in the middle of his parents’ dispute. [R] was able to accurately identify how both his parents feel and react in their inter-parental dispute. When he images them he sees them fighting and his mother as sad and the person responsible for the arguments and his dad as angry at his mother. Furthermore [R] seems to feel a sense of hopelessness that the conflict between his parents will never end.”
It is an observation that is frequently made by report writers reporting on couples litigating in this jurisdiction. Apart from this observation by

Ms O, which echoes observations made by Mr N, there is no risk of physical or psychological harm of abuse, neglect or family violence other then the children being caught in the ongoing conflict between their parents.
The level of physical discipline by the Mother is not sufficient to raise concerns when considering this factor.

Section 60CC (3)(a):
Additional considerations are:
a.any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

This has been previously canvassed. In summary I accept both children have expressed a strong wish to see their father and that would be best accomplished by unsupervised overnight time, provided there is no risk to the children in any of the ways previously referred to.

Section 60CC(3)(b):

b.the nature of the relationship of the child with:
i. each of the child’s parents; and
ii.other persons (including any grandparent or other relative of the child)

There is no evidence of the children having a particularly special relationship with any members of their extended family on either side.
At page 4 of her report Ms O observed:
“[The Mother] reported that she is finding it difficult bringing up two small children as a single mother. An observation of the children and [the Mother] together indicated that she does seem to be having trouble guiding and disciplining the children. When my observations of her interaction with the children were fed back to her she agreed that at present she feels “on the edge”, that because of her stress levels she often believes she is excessive in her physical treatment of the children which then leads her to feel intense remorse over her mishandling and intolerance of the children. She also agreed that she would voluntarily accept parenting support for this issue.”

Section 60CC(3)(c):
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

I regard this as a particularly important factor in this matter. The Father’s attitude, which I accept at face value, is that if the children were to live with him in Town 1, an appropriate arrangement would be for them to spend week about time with each parent. As was pointed out by Counsel for the Independent Children’s Lawyer, such a proposal by the Father must cast serious doubt on his concerns that the children are subjected to unnecessary physical discipline whilst in their mother’s care.
As I have previously noted, the Mother has at time been gracious and

co-operative with the Father in a variety of ways.
I gained the distinct impression she would contemplate unsupervised time with the children.
At transcript page 63:
“His Honour: …would you contemplate, if it was limited to say, daytime, or something like that, or a few hours, unsupervised time with the children?
[The Mother]: I will. It depends how it goes, and stuff. I will, it depends how it goes, and things. [P’s] dancing this year at […] on the Saturdays. Maybe next year, it might be changed. I don’t know what is next year’s yet. …”

It appears that one obstacle to the Father having unsupervised time with the children was his reluctance to attend with [P] to her dance classes on a Saturday morning. The Father was also not interested in attending [P’s] dance contest. That the Mother extended the invitation is another example of her willingness and ability to encourage a relationship between the children and their father.
The best outcome for the children would be if the Father relocated to the Brisbane Suburb 1 area and there would be greater flexibility to the Court in making proposals for regular time, or in the alternative, the Father was able to put forward a proposal that he could stay with friends for an extended period of time, such as a weekend.
I have taken into account what I regard as the Mother’s concessions about unsupervised time and will make reference to this aspect when putting forward proposed orders.

Section 60CC(3)(d):
(d) the likely effect of any changes in the child’s circumstances,
i. including the likely effect on the child of any separation from:
either of his or her parents; or
ii.any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

I find this factor not greatly relevant. It would be a concern if the children graduated to holiday time in the Town 1 area, there may be claims by the Father the children do not want to return, but that is mere speculation at this stage.

Section 60CC(3)(e):

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

As previously noted, because the Father has the vehicle he can be responsible for costs of transport. There did not appear to be any suggestion to the contrary.

Section 60CC(3)(f):
(f)the capacity of:
i. each of the child’s parents; and
ii.any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

As previously noted, each parent has certain vulnerabilities as well as a range of positive characteristics to bring to the task of parenting.
The strong impression I gained is the Mother could do with, “time out” from the parenting of two boisterous children, 24 hours a day seven days a week.
The Father is ready and willing to care for the children but the onus is on him to satisfy the Mother he will not use any such opportunity to remove the children from her primary care. With her lack of self esteem I believe this is a real, but unacknowledged, concern of the Mother. The Father must not engage in any intimidation towards the Mother by way of threats, complaints or insults. In both the short and long term this would prove counter-productive.

Section 60CC(3)(g):
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

I have no relevant observations to make other then to accept the validity of the observations in the reports and the exhibits.

Section 60CC(3)(h):
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
i.the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii.the likely impact any proposed parenting order under this Part will have on that right

Not relevant.

Section 60CC(3)(i):

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The Mother has demonstrated a far more responsible attitude to the role of parenting. To his credit, the Father has maintained regular phone contact with the children. He has persisted with this litigation notwithstanding the withdrawal of legal aid. The obstacles he has had to surmount in continuing the litigation are greater than for the average litigant who is not legally represented.

Section 60CC(3)(j) and (k):
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
i. the order is a final order; or
ii. the making of the order was contested by a person

Previously discussed. There is no credible evidence to warrant any finding under this subsection.

Section 60CC(3)(l):
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

I am unable to comment other then to note the Father’s evidence if an order is not to his satisfaction he will appeal.

Proposed Orders

The best outcome is to put in place a range of options that will encourage the parents to enter into their own arrangements.
The first orders made on the 15 September 2008 in the Federal Magistrates Court, provided for the Father to spend time at the Brisbane Suburb 1 Contact Centre.
That order did not take into account the fact that because of his convictions the Centre would not entertain such a proposal.
On the 30 January 2009, again in the Federal Magistrates Court, there was a provision for the Father to spend supervised time one weekend per calendar month from 6.00 pm Friday until 5.00 pm Sunday to be supervised by his father with handover to take place at a local shopping centre.
As I have noted, there were a minimal number of times that effect was given to this order.
On the 15 July 2010, after the matter had been transferred to this jurisdiction, I made orders that the Father spend time with the children supervised by Mr and Ms T. The time was to be as agreed between the parties but in the event they failed to agree, every second Sunday from 9.00 am until 4.00 pm. In the event that Mr and Ms T were unwilling to supervise the time, the Father was to spend time supervised by such other person as may be approved by the Independent Children’s Lawyer.
I propose to put in place orders that on alternate weekends the Father spend time with the children from 9.00 am until 5.00 pm on the Saturday and the Sunday or such greater or lesser time as the parties may mutually agree, subject to the Father ensuring that the children, or either of them attend any extra-curricular activities in which they have been enrolled.
Any time spent with the children by the Father is to be supervised by the paternal grandfather or Mr T or Ms T or such other person or persons as the Mother may approve in writing.
The Father is to be responsible for transport costs associated with spending time with the children.
The Mother may, at her election, allow the Father to spend unsupervised time with the children for such periods of time as she may determine and subject to such terms and conditions as the parties may mutually agree.
I make the following observations in relation to the proposed orders. I did not hear evidence directly from Mr T, but there was no challenge to the fact that his evidence would be along similar lines to that given by his wife. Notwithstanding that Mr T has been a long term friend of the father, having heard from Ms T, I have every reason to believe that he would not allow the Father to behave in any inappropriate way with the children.
Normally an order to approve supervisors is delegated to the Independent Children’s Lawyer.
In the present instances I note that the Mother has accepted as supervisors the paternal grandfather and Mr and Ms T who are known to be friends of the Father. There is no acceptable evidence that for any of the supervised time the Father has spent with the children that the supervisors have been anything other than diligent. Indeed it may be speculated that the supervisors are there as much for the Father’s benefit as for the children, and that the supervisors can be witnesses to discount any possible suggestion of inappropriate conduct by the Father. There was one occasion immediately after the falling out with Mr and Ms T the Father drove the children back to the Mother’s residence. Having regard to the surrounding circumstances I would not be critical of Mr or Ms T for allowing this situation to arise.
I have every confidence that if the Father put forward some other friend from one of the support groups from the Town 1 region or the Brisbane Suburb 1 district, that the Mother would not be unreasonable in agreeing to the time being supervised by such person nominated.
In making an order giving the Mother the discretion to approve unsupervised time I have had regard to a number of factors:
·Her statements in the course of cross examination as previously
quoted that she would contemplate an arrangement where the
Father spend unsupervised time with the children.
·The need for her to have “time out” from the burden of parenting
two boisterous children. Even if supervisors are not available for a particular time, the Mother may agree to the Father spending time in a designated environment initially for limited periods of time.
·The Mother would be in a position to monitor the children’s
behaviour after each such visit. It is not uncommon for children to display behavioural difficulties after a period of time with a contact parent but, in the circumstances presented the children may behave positively knowing their wishes have been taken into account.
·I note that it is a not uncommon order in this Court for an order to
be made in general terms that the non-primary parent is to spend
time with the children at all such times as the parties may mutually
agree. The effect of this is to give the Mother some empowerment
to allow the Father to spend perhaps a few hours initially at regular times on an unsupervised basis to attend a particular activity.
I am persuaded by a combination of the Mother’s evidence, the exhibits, the reports and the submissions by the Independent Children’s Lawyer there is an unacceptable risk to the children if they were to have significant periods of unsupervised time with their father.
The nature of the unacceptable risk includes:
·A risk the Father would enter into an inappropriate relationship to
which the children should not be exposed.
·A risk the Father would increasingly seek to influence the children
to reside with him leading to instability in their lives.
·A risk the Father would make inappropriate enquiries of the
children about the Mother’s household and/or make inappropriate
criticisms of her household.
The person best placed to assess the level of risk and monitor the situation on an ongoing basis is the Mother. She has shown herself to be gracious in many ways in acknowledging the need for a relationship between the children and their father.
I would see very little risk to the children if they had unsupervised time with their father limited in the initial phase to day time activities in a public setting. Once the Father has been able to convince the Mother that he can be trusted to behave appropriately on a regular basis it would be appropriate to extend the periods of unsupervised time again, best monitored and approved by the Mother. The Mother would have to appreciate if she permitted some unsupervised time that at the cessation of such time on their return to her household, the children may be sad and missing their father and as a result exhibit behavioural difficulties. It would not be a unique situation; it is a common occurrence with many families that the children are expressing their frustration that they cannot see both parents on a regular basis.
The Mother’s proposal was that the Court should stipulate that the Father’s time was to be supervised until P turned 12 years of age. The clear view I express is that it is not appropriate to make an order that will come into effect in seven years time. A great deal may change in the intervening period.
The view that I take is that I will not make orders in final form at this stage. They are expressed to be draft orders at this point in time. I will have one last opportunity to hear from the parties and the Independent Children’s Lawyer before issuing the orders in final form.
The draft orders as follows:
1.The children, R, born … December 2003 and P, born … January 2006 live with the Mother.
2.The Mother and Father to have shared parental responsibility for the long term care, welfare and development of the children.
3.The Father spend supervised time with the children from 9.00 am until 5.00 pm on the Saturday and the Sunday on alternate weekends or such greater or less time as the parties may mutually agree, subject to the Father ensuring that the children, or either of them attend any extra-curricular activities in which they have been enrolled.
4.Any time spent with the children by the Father is to be supervised by the paternal grandfather or Mr T or Ms T or such other person or persons as the Mother may approve in writing.
5.The Father is to be responsible for transport costs associated with spending time with the children.
6.The Mother may, at her election, allow the Father to spend unsupervised time with the children for such periods of time as she may determine and subject to such terms and conditions as the parties may mutually agree.
7.The Father is permitted to telephone the children at all such times as the parties may agree but in the event they are unable to agree then on Monday, Wednesday, Thursday, Friday and Saturday of each week between 6.00 pm and 6.45 pm.

I certify that the preceding one hundred and ninety-three (193) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 18 May 2011.

Associate:

Date: 18 May 2011

[2011] FamCA 353

18 May 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction