P and P - [2003] FMCAfam 295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P & P

[2003] FMCAfam 295

FAMILY LAW – Children – contact – finding made that fortnightly contact would not be appropriate but that occasional contact at a contact centre would be in the child’s best interests – the child’s representative advice that contact less frequently than once a fortnight cannot be arranged at any contact centre in Melbourne – no contact order made.

Applicant:

T P

Respondent:

L P

File No:

MLM 3912 of 2002

Delivered on:

19 July 2003

Delivered at:

Melbourne

Hearing Date:

18 July 2003

Judgment of:

Brewster FM

REPRESENTATION

Counsel for the Applicant:

Self-represented

Counsel for the Respondent:

Ms N. Greenberg

Solicitors for the Respondent:

Victoria Legal Aid

Counsel for the Child Representative:

Ms J. Spehr

Solicitors for the Child Representative:

MacGregor Solicitors

ORDERS

That all previous orders be discharged.
That the application of the father in relation to residence or face to face contact with respect to the child of the marriage, J P born … 1999 is dismissed.
That the child reside with the Respondent Mother and the Respondent Mother have the responsibility for his long term and day to day care, welfare and development.
That the Applicant Father be permitted contact with the child in the form of sending appropriate cards, letters, gifts and photographs in reasonable numbers and the mother is to provide the child with any such cards, letters, gifts or photographs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 3912 of 2002

T P

Applicant

and

L P

Respondent

REASONS FOR JUDGMENT

This matter concerns a dispute as to residency and contact involving a child, J P. J was born on …. 1999 and is therefore aged four.
The husband is aged 32 and the mother 31. They were married on

14 May 1995 and separated in August 2000. After separation J lived with the mother and there was no contact between him and the father for some months. This was not as a result of any refusal by the mother to provide contact but as a result of no request being made by the father.
Ultimately the father contacted the mother in March 2002 and there was an agreed regime of contact put in place. This was to occur at a park near the father's residence on alternate weekends in the presence of the mother. According to the mother it only occurred on four occasions. I accept her evidence that it was not entirely successful in that the father used these occasions to interact with the mother rather than with J. She says, and I accept her evidence, that she was the subject of sexual comments and abuse. Finally, when the father failed to turn up on one of these visits she discontinued them.
Again nothing happened for quite some time, again as a result of inaction on the part of the father. Ultimately he went to see a solicitor in September 2001, but it was not until 22 March 2002 that any application for contact was filed. That application sought supervised contact initially moving after a time to unsupervised contact. The application did not include overnight contact.
The matter came before this court on 28 May 2002. On that day consent orders were made that until further order there be contact for two hours each alternate weekend at the G Street Contact Centre in Watsonia. That contact centre was chosen because it was convenient for the mother. It was not until August that contact was able to commence at that centre. I am told by the child's representative that there is a waiting list at all contact centres in Melbourne. The contact was not successful. As I have indicated, it commenced in August 2002 and there were six scheduled visits up until October 2002. Three of those contact visits did not occur. On two occasions this was because the father failed to attend on time. It was not a question of being a few minutes late. It was a question of being significantly late; at least an hour late. On the last occasion the father telephoned the centre an hour before the scheduled contact session to say that he was unable to attend.
The centre reports that the father was angry that the contact did not occur and did not appear to accept that this was his fault. That is entirely consistent with the way he gave his evidence in this court. Not surprisingly the centre declined to assist further in relation to contact. When the matter came back before the court again on 2 December the contact orders were discharged.
The mother seeks that contact be reserved. This position is endorsed by the child's representative and is also supported by Mr Raymond Jansen, a Regulation 8 counsellor, who provided a report in this matter. I am not enthused about the concept of reserving contact. Indeed I do not know what precisely is meant by that term. It seems to have within it seeds of further litigation, I think my decision should either be that there be contact or there be no contact. I make it clear that no order concerning residence or contact is necessarily final in that if circumstances change such an order can be revisited.
The father's application filed in 2002, as I have indicated, sought only limited contact. In an oral application during the course of this hearing the father in fact sought an order for residence in his favour. I should add that the father was represented up until shortly before this hearing but he appeared unrepresented at the hearing. I indicate at the outset, and the reasons will become obvious, that I do not propose to make any order that the child live with the father. I do not propose to dilate on my reasons for that.
In making a decision as to this matter I am required to treat J's best interests as the paramount consideration. Section 68F(2) contains a number of matters to which I should have regard when assessing what is in J's best interest and I will deal with each of the paragraphs contained in that subsection in due course. The backdrop to this is section 60B of the Act which sets out the objects and principles underlying the Act insofar as it deals with children. Section 60B says:
The object of this part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The section goes on to say:
The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married, or have never lived together;
(b)children have a right of contact on a regular basis, with both their parents and with other people significant to their care, welfare and development.
(c)parents should share the duties and responsibilities concerning the care, welfare and development of their children.
I will now set out the matters contained in section 68F(2) and consider each of the paragraphs of that subsection in turn.
Paragraph (a) requires me to consider any wishes expressed by the child and any factors such as the child's maturity or level of understanding that I think is relevant to the weight that should be given to those wishes.
J is a four-year-old child, so his wishes are not particularly relevant. Nevertheless he was quite articulate in expressing them to Mr Jansen. Mr Jansen's report in this respect is as follows:
J had sighted Mr P in the waiting room and identified him by his name or as his father, in contrast to Mr B (his stepfather) who he referred to as "Dad". He was eager to see Mr P and explained, "That man is T. I want to see him. I like him." When the writer asked him whether he was sure he wanted to see his father
J replied, "Yes, I want to see him today."
However as I have indicated, given that he is only a four-year-old child, those wishes cannot carry great weight in these proceedings.
Paragraph (b) requires me to consider the nature of the relationship of the child with each of the child's parents and with other persons.
In the context of this case it is J’s relationship with his father that is relevant. The passages that I have quoted from Mr Jansen's report would indicate a good relationship between J and his father. However, for reasons that I will dilate on later I do not think there is any prospect, for the moment at any rate and perhaps permanently, of there being a normal father-son relationship developing in this case. The relationship, I suspect, is reasonably superficial.
Paragraph (c) requires me to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person, with whom he or she has been living.
This paragraph would be relevant if I proposed to deal in detail with the father's application for residence. I do not intend to do so. I do not believe that paragraph (c) has any relevance in this case.
Paragraph (d) requires me to consider the practical difficulty and expense of a child having contact 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.
This paragraph is germane to this case. As will become apparent, the only type of contact that I propose to consider is supervised contact. That does create a difficulty and can affect a child's right to maintain personal relations and direct contact with the “non residence” parent.

I accept what the father says in his affidavit about the inhibiting effect of supervised contact. I always try to avoid making orders for supervised contact if I can, but in this case, for reasons that will become apparent, that was my only option.
There are other problems which I will discuss later in this judgment concerning the practical difficulty of arranging supervised contact in the context of this case.
Paragraph (e) requires me to consider the capacity of each parent, or any other person, to provide for the needs of the child, including emotional and intellectual needs.
Again it is the capacity of the father that is relevant in this context.

I am satisfied he has a very limited capacity to meet J's emotional needs. The basis for this comment will become apparent later in this judgment. There is no evidence in relation to his capacity to meet J's intellectual needs.
Paragraph (f) requires me to consider the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that I think are relevant. This paragraph has no application in this case.
Paragraph (g) speaks of issues of violence as do paragraphs (i) and (j). Violence is an issue in this case in that the mother alleges violence on the part of the father and the father has a conviction for violence. However in light of the ultimate decision I have come to in this case I do not need to consider these paragraphs.
Paragraph (h) requires me to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
Again in the context of this case, it is the attitude of the father that is relevant. The father has shown a poor attitude to the responsibilities of parenthood. A classic example is what occurred at the G Street Centre. As I have indicated, three of the six sessions were cancelled because the father did not turn up. Given what Mr Jansen says about J's wishes I imagine this was deeply disappointing to J. Despite his protestations to the contrary in evidence I do not believe the father gave J’s feelings any thought at all.
Paragraph (k) requires me to consider 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.
It was urged on me that any order permitting contact would be likely to lead to further proceedings because I could have no faith that the father would adhere to any contact regime and the history of the G Street contact would be repeated. I think there is some force in this. However as will be seen I would take this risk in order to allow contact to occur.
Paragraph (l) requires me to consider any other fact or circumstance that I think is relevant. Such facts or circumstances will become apparent in the balance of this judgment.
As I have indicated previously, I do not contemplate an order in this case for contact other than one subject to professional supervision.

I have deep concerns as to the psychological or psychiatric make-up of the father. I found his thought processes in this case discursive and disordered. It was difficult to follow his evidence and difficult to follow those thought processes. He appeared totally self-absorbed and self-centred. He blamed everyone but himself for what had happened. For example, as I have indicated, on three occasions contact at the G Street Centre was aborted. On two occasions this was because he had turned up late and on the other occasion because he cancelled at the last minute. He blamed the mother for this. He said that she should have returned to the Centre after he arrived or made other arrangements for catch-up contact. He seemed unaware of the fact that catch up contact at the centre was out of the question. He also blamed, it would appear, the Centre for what had occurred. The reasons for his failure to attend promptly were unclear to me. At first he indicated that it was by way of a protest. He said that the centre had rescheduled afternoon sessions for the morning and that he proposed to come late as a form of protest at this decision. However the first occasion involved an afternoon session. Later he indicated that he had missed his train on each of the occasions when he was late. To me missing a train on two occasions in the circumstances smacks of more than just misfortune.
I do not know what the problem is with the father. There are three possibilities that occur to me. The first possibility is that he has some form of personality disorder. This would usually, as I understand it, indicate that there is no hope for any change. The second is that he may be suffering some mental illness which is incapable of being cured in which case the same comments would apply. The third is he is suffering some sort of a mental illness or mental condition that can be cured or can be ameliorated. If this is the case there is hope for the future. I am not a psychologist or psychiatrist and cannot make any assessment of the nature of the problem Mr Jansen did not comment on this aspect of the case and I apprehend from his qualifications that he may not be a qualified psychologist. I do not know what the problem is. I do not know whether it can be ameliorated. It is clear however that his condition is such that I could not contemplate any contact other than contact at a contact centre.
I do not regard a regime of fortnightly contact as appropriate in this case. I will expand on my reasons later but suffice to say at this point that I cannot see a normal father-son relationship developing in this case. The father’s personality and self absorption will inhibit this. The evidence of Mr Jansen and also of Ms W, a worker at the contact centre who observed the interaction of J and the father, corroborates this. They observed only limited interaction between J and his father. I add that in relying on this evidence I appreciate the artificial surroundings in which this contact took place.
Mr Jansen believes that the father's desire to interact with J is closely related to his wish to interact with the mother. The evidence for this in the context of this case, that is in the context of the evidence the father gave viva voce, was not as clear cut as the observations made by Mr Jansen. However I accept Mr Jansen's opinion in this respect.
Mr Jansen has recommended that there should be no contact between J and his father and I quote his conclusions in this regard. He says:
J's needs for contact with Mr P is not the question. Knowing that his father cares about him is likely to enhance his self-esteem and facilitate a relationship that is realistic rather than fantasised. Notwithstanding that, it seems that in this case contact might harbour the potential for adverse outcomes. Although he concedes pushing his mother and punching walls, the writer does not regard the risk to J as necessarily stemming from Mr P's physical aggression Rather it stems from the fact that Mr P appears to regard contact as a means to an end, namely access to Mrs B. Once it becomes clear to him that this is not possible it is reasonable to surmise he will show similar disregard for J's feelings as he did on three occasions at G Street. Furthermore, his lack of sense of boundaries as reflected in, say, the missed appointments, the stalking, and the allegedly sexually explicit calls to her and Mr B, suggest that caution is appropriate before dismissing Mrs B's fears that he might use contact as leverage against her in some way. Sadly for J, Mr P seemed little more than superficially committed to preserving their relationship and appeared unable or unwilling to consider contact with only circumstances in which there was no contact with Mrs B.
I interpolate at this point that Mr Jansen misunderstood the situation in relation to stalking. The father has a conviction for stalking but that apparently did not involve stalking the mother. I take into account that this misapprehension might have played a part in his conclusions. Mr Jansen goes on:
Regrettably, Mr P's conceptualisation of contact as merely an extension of his own need to resolve his relationship with Mrs B does not augur well for J. Normally one might recommend for the father to be given a second chance, however the writer discerned no evidence to suggest that in the eight months since the last scheduled contact visit Mr P had developed insight or a genuine empathy for J or that his focus on Mrs B has diminished sufficiently to permit an understanding of J's separate needs. While the writer would be happy for parental involvement, a recommendation in favour of contact might lead to a dependant child being put in circumstances in which his needs are not considered paramount. Reluctantly, therefore, it is suggested that Mr P's contact be reserved.
I accept Mr Jansen's opinion to a significant extent. I do not think that it would be appropriate to order, for example, supervised contact every alternate weekend. There are a number of reasons for that. The first is as expressed by Mr Jansen. Secondly, as I have indicated, I feel that that sort of contact would be of limited value for J given the psychological make-up of the father which I think would inhibit the development of a normal father-son relationship. Thirdly history indicates that the father for whatever reason finds frequent contact difficult to manage and it might be that he would adhere to a regimen of less frequent contact. Fourthly it would involve inconvenience to the mother. The G Street Contact Centre has indicated it will not reinstate contact because of the father's abusive attitude. I have indicated that the G Street Contact Centre was chosen because of its propinquity to the mother's residence. I believe I am justified in assuming that if another contact centre were prepared to take up the case that this could be at some significant distance from the mother’s home. I infer from the waiting time that had to elapse in this case before the father could have contact with J at the G Street Centre that there is not an abundance of such centres. Fifthly it would be inappropriate, having regard to the resources of the community, to order a two-week regimen of contact when such a regimen is not appropriate in this case in any event. Unfortunately, however, as will be seen later, that is the only sort of regimen that could be achieved. Finally it would deprive someone else of a place at the centre, someone whose child might well benefit more than J from contact with his or her father.

I appreciate that some of the matters set out in the previous paragraph go beyond issues concerning J’s best interests. However while those best interests are the paramount consideration they are not the sole consideration.
If I could effectively order it, however, I would not completely cut off all contact between J and his father. In this respect when I consider whether or not to make orders preventing any contact between a child and a parent I am guided by the observations of Kay J in K v B (1994) FLC 92-478. When I apply or consider His Honour's comments in the context of this case I appreciate that he was dealing with a situation in K v B where there was a finding of an unacceptable risk of sexual abuse if there were unsupervised contact. That of course is not the situation in the present case. I am also mindful of the fact that His Honour was in dissent in that case but I do not believe that in the circumstances this is relevant.
I will quote from some parts of His Honour's judgment. He quoted with apparent approval an extract of a judgment of Grainger J in Strobridge v Strobridge, a Canadian case, to the following effect:
In my opinion, there is always benefit to children knowing their natural parents. The relationship with a natural parent may be close or distant but there is benefit in knowing such a parent. If it is in the best interests of children that they maintain some type of relationship with their natural parent, then the court must strive to create an atmosphere in which that relationship can foster.
In this case the only relationship that I could envisage between J and his father would be a distant relationship, but I would, if I could, put in effect orders which would at least maintain that type of relationship.
Kay J further said at page 80-971 in effect that except in exceptional circumstances contact should not be prevented between a parent and a child. His Honour said:
Custodial parents often ask, "Why bother? Is it not better to stop contact altogether with a parent who has been inattentive, shown bad judgment, or particularly one who has been abusive?" In general, disruption of a child's contact with a parent is experienced by the child as an abandonment. Often a child with a child's age appropriate egocentric view of the world can understand the loss of contact only as a result of something he or she did.
His Honour then referred to published works in support of that observation. That observation is apposite here. The father here has shown bad judgment and has been inattentive. He has certainly fallen well short of his responsibilities of a parent. But nevertheless, if I could, I would maintain some form of relationship between J and his father.
To summarise, notwithstanding the fact that I do not believe that unless the father undergoes a radical personality change, or a change in attitude, that there can never be a normal father/son relationship between J and his father, I do not believe that a total cessation of contact would be in J’s best interests. I believe that if nothing else, J has a right to know his father as a real flesh and blood person, not as some disembodied person known only through photographs, postcards or letters. It was suggested on behalf of the mother that postcards and letters would suffice for this purpose. I disagree. I also am very doubtful as to whether the father has the resolve to continue contact through only this means or has the ability to a write appropriate postcards and letters.
In addition, I believe that some contact might prevent or ameliorate any feelings of guilt that J may feel. In this respect I refer to the last comment by Kay J that I have quoted.
The greatest reservation I would have if I were to order supervised contact would be that history would repeat itself and that the father would not avail himself of that contact. The child's representative was of this view and was of the view that the risks of the father repeating the events of last year outweighed any benefits that contact might have for J. By implication Mr Jansen was of the same view. For myself I would be prepared to try again. As I said during discussion with counsel, that would involve a leap of faith, but, I would have thought, a leap of faith that was appropriate in the circumstances. If the father repeated his actions of last year then there could be no question that contact should cease. However, as will be seen, all of this is rather academic.
During the course of the case I raised with the child's representative the possibility of supervised contact at a contact centre but less frequently than once a fortnight; perhaps once every two months or so. This would be in order, as I have indicated, that J not lose touch with his father completely and should have a chance to know him as a real person, a flesh and blood person and so that any feelings of blame on J’s part could be ameliorated. At my request the child's representative made inquiries of the G Street Centre to ascertain if such a contact regimen could be put in place. I was informed that the centre advised that it would not be prepared to undertake such a process for two reasons. The first is the actions of the father. The second is that it is apparently geared for fortnightly contact only and cannot accommodate contact less frequent than this.
The child's representative, whom I understand is experienced in these matters, said that this is typical of contact centres in Melbourne and that my suggestion of infrequent contact supervised by a contact centre could not be effected. It is ironic that my wish to reduce the burden on the public purse and on a contact centre by having less frequent contact than once a fortnight is impossible. I could apparently order contact each alternate weekend at some contact centre other than the G Street Centre provided such a contact centre would be prepared to accept the father. But if I order contact less frequently than fortnightly it cannot be put into effect. I am bemused by this. In Canberra where I am based there is only one contact centre but it can easily accommodate infrequent contact and welcomes orders of this type which place fewer demands on its resources than do orders for frequent contact. It is unfortunate that contact centres in Melbourne are not as flexible.
In the end therefore I am stymied. I would, if I could, order contact once every two or three months for short periods under professional supervision. I cannot. Reluctantly therefore I have decided that there should be no order for contact.
The orders I propose to make will be in the following terms:
(1)That all previous orders be discharged.
(2)That the father's application for residence and/or contact with J to be refused.
(3)That J reside with his mother who is to be responsible for both his day to day and long term case welfare and development.
(4)That the father be permitted to send to the child appropriate cards letters gifts and photographs.
The issue of long term decision making was not canvassed at the hearing but the reasons for me making an order giving this responsibility to the mother alone are obvious. As to the last order it was conceded by the mother that there should be contact if the father wishes by gifts cards or letters. The issue of the father sending photographs was not canvassed during the hearing but I think that an order permitting this would be appropriate.

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

Associate:

Date: