P and P - [2002] FMCAfam 353

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P & P

[2002] FMCAfam 353

FAMILY LAW – Contact – best interests of the children.

Applicant:

G P

Respondent:

J M P

File No:

ADM 2538 of 2001

Delivered on:

26 September 2002

Delivered at:

Darwin

Hearing Date:

26 September 2002

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Mr Pertl

Solicitors for the Applicant:

Joseph Pertl Solicitor

Counsel for the Respondent:

Ms Lewis

Solicitors for the Respondent:

Legal Services Commission of South Australia

Counsel for the Children:

Ms West

Solicitors for the Children:

Legal Services Commission of South
Australia

ORDERS

IT IS ORDERED THAT UNTIL FURTHER ORDER:

All orders in respect of contact between the father and the child, T R P born 26 June 1992, be suspended.
The father have contact with the child, O T P born 28 February 1996, in terms of the orders of 6 September 2001; that is between 10:30 am Saturday until 5:30 pm the following Sunday of each alternate weekend.
The contact in order 2 hereof be suspended during the forthcoming September/October school holiday period and, in lieu thereof, the father have contact to the child, O, for a period of seven days at a time to be agreed between the parties, but, failing agreement, from 5 pm on Friday 4 October 2002 until 5 pm on 11 October 2002.
The father undergo whatever counselling is directed for him by the child representative in respect of separation and parenting issues within seven days of being directed to do so by the child representative.
That an injunction issue and the father be restrained from physically chastising either child.
That the parties have liberty to relist the matter in December of 2002 before me upon Mr Merton’s completing a further report, if commissioned to do so by the child representative, in respect of the resumption of contact between T and the father, and issues in respect of Christmas contact in respect of both children.
That a copy of these reasons for judgment be provided to each of the parties.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

ADM 2538 of 2002

G P

Applicant

And

J M P

Respondent

REASONS FOR JUDGMENT

These are ex tempore reasons for judgment in the matter of P. The applicant in the proceedings is G P and the respondent is J M P. They are the parents of two children, T R P who was born on 26 June 1992, so T is a little over 10 years of age at the present time, and O T P who was born on 28 February 1996, so O is 6½ years of age at the present time.
These are applications for interim orders that the father has brought for contact to these two children.
I should indicate that the parties’ substantive applications have been fixed for final hearing in Adelaide on 29 April 2003, and that these are interim proceedings. As a result, because of the urgency surrounding the matter, they have been listed before me on the telephone, which I appreciate is not the best way to deal with them.
Because, again, they are interim proceedings, the only evidence I have had before me today is in the form of affidavits that each of the parties have sworn and, more importantly, in the form of a number of reports, a psychologist, Mr Merton, has prepared following interviews he has had with the parties and with T and O.
Neither of the parties has been cross-examined about what is in their affidavit and nor has Mr Merton. The truthfulness of the parties and the testing, through cross-examination of their evidence and the basis on which Mr Merton has reached his opinion must await the final hearing of the matter.
However, I think I can say – and I do not think either of the parties would disagree with me – that the proceedings are difficult proceedings and infused with a degree of bitterness and suspicion that each party has for the other. However, there is no argument between the parties that T and O should continue to live with their mother. The dispute is about contact and whether any contact, at this stage, between T, O and their father is likely to be in the children’s best interests.
At this stage what the father seeks is alternate weekend contact with both children. He is also seeking some orders for contact in the September / October school holiday that starts tomorrow, and, as his application currently stands, he is seeking orders for contact for half of the Christmas school holiday period.
It is the mother’s position that, in the past, contact between the father and the children has had an extremely adverse effect on both children, but particularly T. As a result it is the mother’s position that at this stage there should not be any contact at all between the father and the two children.
It is, in the light of the intractable dispute between the parties, that orders have been made for each of the children to be separately represented in these proceedings and Ms Cocks has been appointed to fill that important role of child representative. As a result of her appointment, a number of reports have been prepared by Mr Merton, who is a psychologist.
As I understand it, four major reports have been written and, more recently, as recently as the past week, a shorter supplementary report has been prepared. So on any view, Mr Merton, the psychologist, has had a substantial input into this matter.
It is, in essence, the father’s position that both children, but particularly T, are being manipulated or turned against him by the mother and it is as a result of that manipulation that T is now apparently, saying she does not want any further contact with him.
It is the mother’s position that the father is unable to separate issues that he has about the end of his relationship with the mother and the commencement of her relationship with another person, from his responsibilities to the two children concerned to be a loving parent. As a result, T, in particular, is at this stage deeply troubled and affected by past contact she has had with her father and, as a result of T’s experience, it is unsafe to allow any contact between T and also O to happen in the future.
It is the mother’s position that the father’s behaviour during contact can be described as obsessive. She alleges that he is unwilling or unable to stop himself discussing his feelings of sadness at the end of the relationship with the mother, to stop himself blaming her and has a need to constantly test the loyalty of the children to their mother. This behaviour, she says has had an adverse effect on T and to a large extent it is inevitable because of the likelihood of a continuation of that behaviour on the part of the father that O will display such behaviour herself in time.
So the mother’s primary position is that there should be no contact between the father and either child. But she has a fallback position and that is that, if there is to be contact between O and the father, it should be supervised. The mother is also opposed to any extended holiday contact at this stage between O and her father.
As I have said, Mr Merton, the psychologist, has been involved in this matter for some time, as a result Ms Lewis, who is counsel for the mother, took me through the various reports of Mr Merton in some detail.
The initial report, as I understand it, took place in May of 2001 when Mr Merton interviewed all the parties, including T and O. At that stage Mr Merton was concerned about the father’s level of emotional functioning. Mr Merton noted that Mr P was very upset at the loss of his family – and I, of course, can understand that – in particular Mr Merton noted that the father was ruminating over past incidents and this caused Mr Merton to view him as being ‘emotionally frail’.
Because of that emotional fragility, Mr Merton was concerned that Mr P would not be able to differentiate between issues that were properly “adult issues” to do with his grief at losing his relationship with his wife, and what can be characterised as “child issues”. These latter issues to do with making the contact between the father and the children as rewarding as possible for the children and, in Mr Merton’s expression, to ensure that it took place in ‘an emotionally safe way’. At that stage, in May of 2001, Mr Merton recommended that the father’s contact be supervised and that Mr P attend counselling to help him work through the emotional consequences of the separation.
It seems that Mr P, to his great credit, took that advice on board and did, indeed, undergo some counselling. However, in February of 2002 Mr Merton again saw the children and he reported that although both T and O were happy to see their father, they both continued to be highly aware of their father’s emotional distress. Of concern also was the bitter feelings the father expressed to both children concerning the mother and her new partner.
Mr Merton was concerned that both children – but T more so than O – were assuming responsibility for their father’s grief and sadness. Mr Merton was concerned that if the father continued to express negative feelings about the mother and her new partner, and also continued to express this great sadness about the end of the marriage, that there was a real risk of the children suffering adverse psychological consequences.
Mr Merton was of the view that the clear interests of the children required that they not become involved in Mr P’s adult and personal issues. As a result, at that stage Mr Merton said that if the father was unable to set and maintain appropriate boundaries between himself and the children that again he might require some more counselling. At that stage Mr Merton was somewhat cautious about extending contact.
However, in September of last year orders were made in respect of contact and there was an allowance for alternate weekend contact made.
It seems that recently T has been exhibiting signs of emotional distress relating to her contact with her father, and for that reason it seems that contact ceased about nine weeks ago. This is the background to the current proceedings. It has also been the father’s position that the contact that has been occurring as a result of the earlier orders, is inadequate and he wants an extension of it. Particularly, he wants an extension to have half the school holidays.
It seems that a few weeks ago a letter was written by T. There is a dispute between the parties as to how that letter came about. It is the father’s position that T voluntarily wrote it and it was to be directed to the court and contained T’s wish for contact to be extended, as the father wants. It is the mother’s position that T was forced to write the letter.
She alleges that this is an example of T being placed under yet more emotional pressure and caused more distress by her father. This has precipitated what she says is now a very extreme emotional reaction in T and has caused her to want to withdraw from any further contact with her father as a self-protection mechanism.
It was against that background that Ms Cocks arranged for Mr Merton to interview all the parties again, and these interviews took place in late August and early September of this year. I have that report.
The matter was to be dealt with last week in Adelaide. However, unfortunately, there was another incident between the parties and the children and, as a result of that, the parties wished to address that and, more particularly, Ms Cocks wanted Mr Merton to see O again. It was alleged by the mother that there had been a physical altercation between O and her father during a contact visit. From the mother’s point of view, it was her position that this was a further indication that the contact was unsafe.
Anyway, I return to Mr Merton’s most recent full report which is dated 16 September 2002, and, in particular, his interview with T. T apparently said to Mr Merton that she has been having bad dreams; that she is fearful of being abducted by her father; that she is generally having difficulty sleeping; that she is on edge because of fears about hearing noises when she goes to bed; that she is frightened of the dark; and, as a result, she is having difficulty at school. In short she presented to Mr Merton as worried and anxious.
In Mr Merton’s view, these are serious consequences for a child of T’s age and seem directly related to the experiences that she is having on contact with her father. In Mr Merton’s view, T perceives that her father is still preoccupied with her mother and her mother’s partner and this preoccupation and the negative views associated with it apparently cause her distress.
T has apparently said to Mr Merton that she is, at this stage, reluctant to see her father. But if there was to be any contact what she would want is some sort of guarantee that her father would not talk about her mother and her mother’s partner during contact.
So there is clear evidence, I think, that T is expressing and displaying a great deal of emotional discomfort. T is not able to cope with this at the moment. I think there is prima facie evidence of this emotional distress by virtue of the sleep disturbances and anxiety as described by Mr Merton.
As I have said, the parties have different views as to why this has come about, but, as I said to Mr Pertl during the hearing of this matter, in my view it would be imprudent of me to discount what Mr Mertin has recently reported and, in a limited hearing such as this one, I think it would be unwarranted of me to disregard what T has said is her wish to him.
In the circumstances Mr Merton has recommended in his report that there is nothing to be gained from attempting to force the issue of contact as far as T is concerned. He recommends a cooling-off period of some three months with, after that, consideration being given to supervised contact once T feels ready for that.
T is familiar with the concept of supervised contact and, as I said, it was one thing that she said to Mr Merton might be a means to protect her from what she feels is her dad’s excessive behaviour in talking about her mother and her mother’s new partner.
True it is that T is still only quite young – she is only 10 – but in the complicated and highly charged circumstances of this matter, and given the limited nature of the evidence before me, I think the clear best interests of T at this stage will be served by suspending any contact between her and her father as Mr Merton recommends.
Mrs West, who appears for the child representative today, also supports the position that contact be suspended for three months. She also foreshadows that Mr Merton will be seeing the children once again at some time shortly prior to Christmas.
It seems to be the case that at least briefly there was a stage when the contact was proceeding happily and that seems to have coincided with some counselling that Mr P had. Mr Merton recommends that Mr P seek further counselling in regards to dealing with the issues surrounding his separation from the wife, and also to assist him to contain his distress at that from the children. The child representative supports that submission and, to his credit, Mr P is apparently willing to undergo such counselling.
The position in respect of O is a little different. She is younger and is, perhaps, a little more resilient than T is. Mr Merton recommends, in respect of O, that as O has expressed a willingness to attend contact without T and is apparently happy for contact to continue, that the alternate weekend contact, as far as O, should be continued and, in addition, there should be a block period of contact in the forthcoming September/October school holidays.
Mr Merton says that further time should be allowed during the coming school holidays, provided O is comfortable with this. He does not specify an exact period. Mrs West submits that it should be for one week.
It is the mother’s position that what has come to pass as far as T is concerned – that is these worrying indications of distress, fears of being abducted, sleeplessness, all the matters I went through – that because of the father’s past behaviour that what has happened with T is inevitably going to happen with O in the near future. It is the mother’s position that already there are signs there in respect of O and as a result the Court should be very cautious as far as she is concerned and adopt a similar position to that taken in respect of T or failing that, go to the half way house of supervised contact.
However, that is not what Mr Merton specifically recommends. Ms Lewis expresses surprise at that, given the history of the matter to date and given that at the outset Mr Merton did indicate his concerns about the possible dangers for the two children arising from Mr P’s difficulty in separating his adult issues from his interaction with the children.
Mrs West, the child representative, is content to support Mr Merton’s recommendation. She also seeks a further order restraining the father from physically chastising either child. Her position in this regard relates to an incident that happened on the last contact weekend. I should say Mr P opposes such an order.
I am very concerned about this matter. I am concerned about, obviously, the possibility of T being permanently alienated from her father, on the one hand, and I am also concerned about what appears to be a grave risk of O being harmed in turn because of what appears to be a lack of insight by her father about him outwardly displaying his hostility to the children concerning the mother and her new partner.
I am also concerned, about the lack of comprehensive evidence at this stage and the fact that Mr P, in particular, has not been in the position to cross-examine Mr Merton about his conclusions and the reasons for them. But I think it would be, as I say, imprudent of me to ignore what Mr Merton has recommended in the context of an interim hearing such as this one.
On balance, I think O’s best interests will be served by there being some ongoing contact between her and her father and I think that such contact should be as recommended by Ms West in her role as the child representative.
For the views I have already expressed, I think the contact between T and her father should be suspended. Mr Merton talks of a three month cooling-off period. It is the father’s position that this began eight or nine weeks ago, around the time the letter was written, and after which T apparently expressed a wish to stop the contact. I think it is artificial to perhaps put an exact time on the cooling off period. I think time should be given to T to settle down and, hopefully, for these disturbing indications to settle down, the sleeplessness and so on, and that Ms Cocks be given an opportunity to get another report prior to Christmas regarding the resumption of contact between T and her father and whether that contact should be supervised and, if so, by whom and where that should take place.
So what I propose doing is giving the parties liberty to relist the matter in December to address the issue of resumption of contact and Christmas contact. I appreciate Christmas is a very important time for everybody, especially the parents of children of the age of T and O.
The mother is fearful of further contact taking place between O and her father. She is fearful of it being for an extended period, and I can appreciate why that is so. However, I think at this stage, on the basis of what Mr Merton has said, that a period of one week’s contact in the school holiday period is warranted between O and her father.
Mr P has said he is willing to undergo further counselling. He has heard what I have said and he has considered the various reports of Mr Merton. I appreciate these are interim proceedings and I am not in a position to reach any concluded view as to why T is in the state she is in, but I hope that Mr P will carefully think about what Mr Merton has said and will go to the counselling that will be directed as he has indicated that he will. As Mr Pertl has requested that these reasons be published, I will made an order to this effect.

For all these reasons, the orders I am going to make are as follows:
That until further order:
(1)All orders in respect of contact between the father and the child, T R P born 26 June 1992, be suspended.
(2)The father have contact with the child, O T P born 28 February 1996, in terms of the orders of 6 September 2001; that is between 10:30 am Saturday until 5:30 pm the following Sunday of each alternate weekend.
(3)
The contact in order 2 hereof be suspended during the forthcoming September/October school holiday period and, in lieu thereof, the father have contact to the child, O, for a period of seven days at a time to be agreed between the parties, but, failing agreement, from 5 pm on Friday 4 October 2002 until 5 pm on

11 October 2002.
(4)The father undergo whatever counselling is directed for him by the child representative in respect of separation and parenting issues within seven days of being directed to do so by the child representative.
(5)That an injunction issue and the father be restrained from physically chastising either child.
(6)That the parties have liberty to relist the matter in December of 2002 before me upon Mr Merton’s completing a further report, if commissioned to do so by the child representative, in respect of the resumption of contact between T and the father, and issues in respect of Christmas contact in respect of both children.
(7)That a copy of these reasons for judgment be made available to the parties.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: C M White

Date: 26^th September, 2002