Partos and Merritt (No. 2)
[2008] FamCA 967
•3 November 2008
FAMILY COURT OF AUSTRALIA
| PARTOS & MERRITT (NO. 2) | [2008] FamCA 967 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – parental responsibility - name |
| APPLICANT: | Mr Partos |
| RESPONDENT: | Ms Merritt |
| FILE NUMBER: | BRC | 1985 | of | 2007 |
| DATE DELIVERED: | 3 November 2008 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | Bell J |
| HEARING DATE: | 29, 30 & 31 October 2008 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Fleetwood of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Francis & Binnie Lawyers of Springwood |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Slade-Jones of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Christine Vachon, Solicitor, of Brisbane |
Orders
That the mother have sole parental responsibility for the child … born … May 2006.
That the child live with the mother.
That the child spend time with the father as follows:-
(a) From 15th November 2008 until 7th February 2009 for 6 hours each Saturday with changeover to occur at Relationships Australia at M.
(b) Thereafter, conditional upon the father completing an attachment based parenting program, on alternate weekends from 9am Saturday until 3pm Sunday with changeover to occur at Relationships Australia at M
That in addition to the time set out in the previous order, the child shall spend time with the father between 12noon and 4pm on days as may be nominated by Mr P, who shall facilitate changeovers at Child Dispute Services in the Family Court.
That Mr P or his nominee shall compile a report pursuant to Section 65L of the Family Law Act prior to 8th May 2009.
That this matter be adjourned until 8th May 2009.
That the mother shall take all steps necessary to change all records relating to the child such that they bear the surname MERRITT-PARTOS and she shall ensure that the child continues to be known by the surname MERRITT-PARTOS.
That in the event of an emergency situation regarding the child the parties shall continue to communicate with each other by way of text messages on each others emergency mobile telephone number/s.
That the parties shall continue to use the communication book to keep each other advised with respect to all matters associated with the child.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The matter be adjourned to 10.00am on 8 May 2009 for mention.
IT IS NOTED that publication of this judgment under the pseudonym Partos & Partos is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1985 of 2007
| MR PARTOS |
Applicant
And
| MS MERRITT |
Respondent
REASONS FOR JUDGMENT
This was initially an application on the part of Mr Partos for orders in relation to a son of a relationship he had with the respondent, Ms Merritt.
The parties had an unusually short relationship of - according to the respondent mother - some three to four weeks during which time she became pregnant and during which time she had developed what I will be touching upon later but I may say at this stage an aversion to the respondent.
The child was born in May 2006. The original application on the part of the father was for equal shared parental responsibility and that the father spend certain time with and communicate with the child as set out in his application which initiating proceedings which was filed on 21 July 2006.
The mother responded by way of a response filed in February 2007 in which she indicated that she sought orders that the child live with the mother and that the parties have equal shared responsibility and that certain further orders were made in relation to the father spending time with the children in that matter.
Subsequently, the father changed his application and on 11 August 2008 filed an amended application in which he sought that the child live with him and that the mother spend time with the child in a supervised capacity. I just say briefly that he amended his original application because, as he said, as a result of the notice of child abuse which was filed in or about the month of March.
RECORDED : NOT TRANSCRIBED
The history of the parties generally in relation to each other is very short, and I think that I have virtually touched upon everything that matters. The mother has set out in her affidavit the allegations which have concerned her and which caused her to develop such an aversion that I have referred to it during the hearing of this case as almost palpable hatred. The mother is obviously distressed about the father and such distress, it appears to me, has in effect gone through her attitude towards the child spending time with the father.
Initially there does not seem to be much resistance. There was resistance but not much. The mother has had a chequered medical history. She has had some psychiatric treatment back in 1993. She has had bouts with cancer and she generally has not, if I may say, suffered very good health at all. This may have something to do with her protectiveness towards her child, but I am not quite sure. Basically the protectiveness is brought about because of a belief she has that the child is not safe in the possession of his father.
The parties voluntarily agreed to the father seeing the child unsupervised and he saw the child for a period of about four months, about one to three hours at a time. The changeovers were direct between the parties and they were tense.
In December 2006 the respondent - and this looms quite large in this case - the respondent mother indicated to the father that she required the contact - if I might use an ancient word which is no longer in the lexicon of Family Law - by him with their son to be supervised. This caused the father a great deal of angst, to such an extent that he decided he was not going to partake in having any contact with his son if it was not on his terms, and his terms were as follows.
The mother indicated that she wanted the child supervised at a particular contact centre. The father endeavoured, as he said, putting the best interests of his child in front of everything else, offered other areas where contact could take place. He said a public place or something of that nature. This was not accepted by the mother. As a direct result thereof the father indicated that he would not have any further contact with his child and did not do so for a period of about three months. He says that he did not feel that he should be forced into having contact with his son, whose interests he only had at heart, at a contact centre or anything of that nature because he did not feel as though he had done anything wrong and that this, in itself, would not advance the welfare or the relationship between himself and his son, albeit the son was very young at that age.
That is all very well, but it was put to the father - and I note that he resented, according to Mr P, the family consultant; see par 48 of his report dated 26 June 2008 - he resented anybody asking him about why he decided for a period of some three to four months, a lengthy period in any small child's life, not to see his son. He was asked whether in fact he thought his son would miss him and he said yes. It appears to be, as has been suggested by the family consultant, that this would be considered more to be something about pride, not about the advancement of the child's welfare.
I cannot understand why this man, who has indicated to me that he would go through hell and high water to have contact with his son because he considers that it is in the son's best interests to know his father and our political masters agree and generally so do I, why he would not, for instance, say: "I do not agree with this, I think this is absolutely appalling, but notwithstanding the fact I disagree with it I think you have breached everything that possibly would make me believe in you, I will bear with it until such time as I can get back to Court and have it organised." He had solicitors at that time, he tells me. He did not, and eventually, subsequently, another order was made, if my memory serves me correctly, and Baumann FM - it was 1 March 2007 or thereabouts - ordered that the child spend time with the father for two and a half hours twice per week on Tuesdays and Thursdays, the mother to deliver the child by herself or by a person known to the child to the home of the father's younger sister at 8.30 am, and the child was to be returned to the J Organisation Child Care Centre at 11 am. The reason for this is that the mother was at that time - I think still is - working at J Organisation in one of the offices there.
A family report was ordered and an affidavit of Ms L attaching such report was filed in this Court - excuse me a moment - I must say that I am hesitating here as I believe this matter is a matter of some urgency and that my judgment should be given as soon as possible - and it is dated 30 April, was signed 30 April 2007 where she, as is her want, does an in-depth report and comes to certain conclusions in relation thereto.
Subsequently, a further order was made by Baumann FM varying the contact procedure and appointing at this time the M Contact Centre which is also Relationships Australia - and that has continued until earlier this year in about March when the father once again ceased seeing the child. He ceased seeing the child, as he says, as a result of not only the notice of child abuse but of difficulties which he was having with the mother. The contact has been resumed. Once again, it concerns me that the father saw fit to cease having contact with his son - who would know him a lot better now than he did back in December 2006 - and would miss him even more, one would have thought.
The difficulty here is, as far as I am concerned, perhaps a personality conflict between the parties. The father submits that he does not have any difficulty with the mother other than he is very intrigued and hurt and depressed as a result of her attitude towards him. I will say that during her affidavit she has set out her complaints about the attitude of the father. In particular I refer to para 18 where she complains of his driving past her home and standing by her car outside Dr R, a psychiatrist, et cetera, et cetera.
These matters loom large in the mother's attitude towards the father. She is - perhaps I am taking it too far - almost obsessed with a view - I am taking it - she is exceptionally anxious about the father's conduct not only in relation to the child but in particular, I find, towards herself. I consider that she is more concerned about her own welfare than the child's. Now, I do not for one moment criticise her for that. She has had, as she finds herself, a most unfortunate experience with the father.
It will be alleged by him, and is alleged by him that he caused her no problems whatsoever, and as it became quite clear during his evidence and in particular in cross-examination, the whole fault of this breakdown is that of the mother's. I do not accept that. I have seen the father in the witness-box. He is a person who generally exhibits extreme confidence. He is a very intelligent man. He is almost arrogant in some occasions when he attempts to debate matters with counsel rather than just answering questions, but on the two occasions that he looked uncomfortable, perhaps because of his intelligence, he recognises the weaknesses in his case was those times which I have referred wherein he did not see his son and that he, himself, made that decision which he says for good reasons but which obviously he has not thought about.
I refer and incorporate in my reasons the family report of Mr P. I have already referred to the family report, it being dated 26 June. In this comprehensive and in-depth report of which I am particularly impressed, he sets out the contentions of each of the parties under the heading Background to the Dispute, and as I have said, I incorporate in these my reasons for judgment those matters as set out therein in an endeavour to shorten the judgment so the parties can get on with their life.
At para 17 of that report he sets out the issues and disputes and issues identified during assessment. Once again, I compliment him upon the accuracy and the economy with which he has dealt through an exceptionally difficult case. I will take each of them seriatim, para 17:
It is a complaint of the father that [the mother] attempts - continues to find ways to break them.
These orders have not been complied with on, I think three occasions - I could stand corrected there, but I think three occasions. They have been breached, according to the father. They have, according to the mother, been breached for very good reasons. I say no more about that at this stage.
The mother’s mental state concern other members of the judiciary prior to me, and as a result thereof she was examined by a Dr H who has filed a report herein and he indicates that the mother is suffering from anxiety, which is quite obvious and that it is very clear and also it became apparent during her cross-examination where on occasion she found it difficult to continue, being somewhat overcome. That, once again, is not a criticism of her, but there is nothing in Dr H’s report in relation to the mother which in any way would concern me insofar as the physical safety of the child. It is conceded by the father that save for her attitude towards him and consequently his lack of contact with the child, that she is a good mother, and she is.
He complains about the mother’s history of raising allegations against him. This is a case which really does not require me to come to a decision on the question of credit. It is quite clear as a result of the view that the mother has of the father she believes very deeply and genuinely - and I find that - that he is not a person who should have much contact with her son other than in a supervised position so that the child can be protected. In the two reports to which I have referred there is evidence of the alleged injuries suffered by the child. There is evidence of 11 notifications to the Department of Child Safety, none of which have been substantiated.
She is over-anxious, overprotective of her son. Once again, some people should say why should any mother be criticised for that? You can criticise to a certain extent if in fact such genuine overprotectiveness is not in the best interests, and I do not believe that on the evidence before me that it could be held that the child having contact with his father would other than be for his benefit, not for the father or the mother's.
So far as the mother is concerned at para 80 of the report to which I have herein before referred, her complaints are set out. She say she has been physically harmed:
He is at risk of being physically and psychological harm to us in the care of [the father]. He is a highly controlling person who has difficulty managing his anger and he is using [the child] as a vehicle in order to keep fighting.
I am more than satisfied that the father has exhibited to me a controlling nature, and I would think that his temper would be rather difficult for him to control on occasions. I do not say he is completely bad-tempered all the time. He sets out in that report the previous history of the parties at page 21. That is the mother on page 21, et cetera, and then at para 41 he goes on to the father. I have said I am very impressed with that report and I incorporate in there his findings and his general view of the parties.
It is incumbent upon me, according to the politicians which we was always considered before they brought it in, but it is incumbent upon me to decide to look at the presumption of equal shared parental responsibility. In this case the father lives at G. He has interests in property there and interests in property in N, five of which I believe are rented out, they are investment properties. He is aged, as appears from the report to which I have herein before referred, 42 years of age. He has not been in employ for wages for a considerable period, but he does seem to be perhaps a jack of all trades, doing a fair bit of work on renovating the properties. He is, I understand, a budding or aspiring artist, and he seems to be able to maintain himself remarkably well.
He professes and it is found to have a great love and affection for his son. I do not for one moment consider that that is not right; he does have. His son also has indicated a bonding with his father which appears not only in the report of Mr P and is something which I take into consideration. I consider that the boy does bond with his father and he is entitled and has a right to know his father, but is this a case where there should be shared parental responsibility?
I touched upon the fact that the father lives in P which is north of Brisbane, and I think the mother is in O which is south of Brisbane. There is a considerable difference between the parties geographically. The father attempts to get over this by suggesting that perhaps at this stage there could be week-about or fortnight-about more, I think, was his idea wherein the child live with him for two weeks and the mother for two weeks. The child is only 2 and a half years old. He will not attend school for a period. There is still some confusion as to whether he will attend prep in 2010 or perhaps later.
It may be very well to say we will have equal shared parenting every two weeks for the next 18 months, but when the child goes to school it could not - if the parties remain in the same geographical relationship to each other - it could not be entertained that there should be a child who goes to two weeks in the P area to school and two weeks in the O area for school.
That is one matter, but the other matter which I have to take into consideration is is there sufficient evidence before me to indicate that the relationship between the parties, whether there has been physical violence or any form of violence is in the best interests of the child, and I emphasise the best interests, and this arises in the case of Russell v Close.
This is a Russell v Close matter where the mother has certain very strong held beliefs, that such beliefs are such that albeit genuine they may have little or no foundation in them, but it has to go a bit further than that. It has to show that these beliefs are such that it is affecting or will affect or could affect the parenting of the child by her. In this case nothing, in my opinion, would affect the mother's ability to parent the child. She puts him first in all circumstances and there is no suggestion that her parenting is other than all that could be desired on the part of the child save for perhaps that matter referred to in s 60CC(2)(c), that is the willingness and ability of each of the child's parents to facilitate and encourage. I am of the opinion for those brief reasons that equal parental responsibility and living with is not in the best interests of the child and I believe the presumption has been overcome.
I then have to consider those matters referred to in s 60CC of the Act. I have touched upon Russell v Close. I will take them in the matter in which I think that they are needed to be looked at. That does not mean I have to refer to every one. It is of course imperative for the child to have a meaningful relationship with each of the parents. This is the father’s, I believe, strongest point. He says that if the child remains with the mother his relationship with the child and the child’s relationship with him will be gravely affected and it would not advance as much as it should be allowed to be so.
Up until comparatively recently I would have considered that this may have been a cause of some alarm for any judicial officer. Dr R is a psychiatrist who has treated the mother over many years, commencing in 1994, I think it was, 93/94. There was quite a large break and then she has come back to him as a result of stress and anxiety. He has treated her for a considerable period recently, no more than three years if my memory serves me correctly.
RECORDED : NOT TRANSCRIBED
For about two years. He has given evidence; was called and cross-examined. He made it quite clear, in my opinion, that in fact the mother's protectiveness of the child has lessened in that she is no longer as frantic - if I might use that word which has never been used in this Court in this trial - about the child's welfare. She is concerned that the father does not take adequate care of the child and refers to the times when he has returned with some injuries which, with great respect to her, are all minor in nature and did not excite, as I have said, the Department of Family Services in any way whatsoever, nor the police if my memory serves me correct. I say in passing that the mother has worked in community welfare in her past in or about 1993.
Am I to be satisfied on the evidence and taking into consideration what Dr R has said, where he said she has improved, that she will not advance the relationship with the father and as a result thereof the father's relationship would not be meaningful. I do not think so. I think that the mother has fortunately, with the assistance of Dr R and perhaps her legal advisers, come to the view that he is not quite as bad as what she was led to believe by his actions towards her.
She has conceded that there should be some form of contact factored in over a period of 18 months supervised, leading to unsupervised contact at the expiration of that period. I refer to the draft handwritten aide memoir put forward before me by Fleetwood of counsel who appears on behalf of the mother. That in itself, notwithstanding Fleetwood perhaps expressed some surprise, gave me the impression that the mother's attitude towards the father has mollified, and that she realises - she has said this on frequent occasions; whether her actions support it or not was another question - that she believes it is essential for the child to have a meaningful relationship with his father, and I think that she will now do her best to ensure that there is a meaningful relationship between the child and his father.
There is a need - this is s 60CC(2)(b) - the need to protect the child from physical or psychological harm, being subjected to or exposed to abuse, neglect, or family violence. The father submits that the mother's attitude was such that the child was being subjected to or exposed to psychological harm - not physical harm, psychological harm. As I have said earlier on, it might be suggested that that could have been the case - I do not believe it, I think it is a question of overprotectiveness, of anxiety towards the child, and the unfortunate view she has taken on the father’s personality. I note of course that they met through an internet chatroom or something of that nature.
There is nothing in the evidence before me now to convince me that this child is being exposed to psychological abuse. I refer to the family report in which the child seems to have a good relationship with his father, settles down easily with his father, and enjoys himself. If a child was being psychologically abused I would have thought there would have been certain symptoms being shown, such as lack of eye contact, quietness, but that does not appear to be the case. Naturally, of course, the child is too young to express any view.
Section 60CC(3)(c) is 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. To me that tends to smack very much of (2)(a), although the legislature have seen fit to separate it and there are numerous papers and Full Court authorities on the question of meaningful relationship. I am of the opinion at this stage that the parties are willing and able to facilitate a close and continuing relationship between the child and the other parent so long of course they have no contact with each other whatsoever.
Insofar as the practical difficulty and expense of the child spending time with and communicating with a parent, that will be difficult but the tyranny of distance in this case is not such that the child will not be able to have adequate time with the opposite parent.
I am of the opinion that taking into consideration in particular those matters to which I have referred that I could not at this stage remove the child from the mother in whose possession he has been since birth, who is the primary caregiver for him. That, of course, is supported by the evidence of the experts in this case. That does not mean that I am bound by what the experts say, but I am of that opinion that the child should remain with his mother.
The next question is the question of spending time with the father. It is essential that - and I take into consideration the submissions of the respective parties and in particular the independent children's lawyer - that if there is to be considerable spending time with the father that the parties must not come in contact with each other. That has been the case since December 2006 where the mother has given evidence that she has not seen or had anything to do with the father save for the following times: she said she has seen him drive past her house, she saw him once, she says, near Dr R’s surgery or rooms, and she has seen him at various Court events.
That must even be more tightly policed now. There must be nowhere for these parties to even smell each other. Just the mere fact of seeing each other is enough to, as far as I am concerned, have blood rushing to their eyes. Both of them; I just do not say only one, I say the other because of the bitterness which the father feels at his - I think it is bitterness and perhaps understandable - that he has been frustrated in his endeavours to develop a relationship with his son, and insofar as the mother is concerned the fact of the father’s conduct towards her as she finds which was mostly offensive to show the streams that she has gone to. The father sent her a note subsequent to the birth of the child in which he said innocuous things and signed it "Love [the father]" and that caused the mother a great deal of concern, and it was only the use of the word "love" that really upset her, and that tends to show the depth of dislike the mother has for the father and perhaps it is some evidence of distrust.
It has been suggested, as I have said, by the mother that there should be a lengthy period of supervised contact between the father and the child before supervision is dropped. I do not believe that is the case. I think it is important that the child, as he is getting older, comes to recognise that the father is his father and that he can have fun with his father without having someone looking over his shoulders as the father refers to the contact centres doing that, and as a result thereof I think it is absolutely essential that the spending time with the father should be unsupervised and brought about as speedily as possible.
It has concerned me whether there should be a feeding in period, if I can put it that way, and the independent children's lawyer seems to suggest that for about two months he should only have six hours on Saturdays unsupervised, the handover to be at the Relationships Australia, and as the father has pointed out at this stage he is having two sessions of three hours.
RECORDED : NOT TRANSCRIBED
Six hours. To me the difficulty here is - well, it is not a difficulty - the problem I envisage is there is considerable distance for the child to travel, although there must have been beforehand just as well, and I have considered this overnight and I must confess I am still concerned about what I should - I say in passing the independent children's lawyer suggests that first two months be in the presence of the father's younger sister. I do not think that is necessary. I think that the unsupervised contact should start now and continue.
I have decided that the father will spend time with the child, but I think it is essential - and he has conceded he will do so - attend an attachment-based parenting program and therapy to raise insight into behaviours in relationships. It has been suggested - and lots of times I agree with particularly Mr P, I think said - he just does not get it on lots of occasions. However, I think that is essential, and it is conditional. Conditional upon the father attending an attachment-based parenting program and therapy to raise insight into behaviours in relationship; that the father spend time with the child for six hours on Saturday, the child to be handed over and picked up at the Relationships Australia.
RECORDED : NOT TRANSCRIBED
Relationships Australia at M.
RECORDED : NOT TRANSCRIBED
It is very difficult when you are under pressure to give reasons for judgment to come to a decision which is fair for everybody, in particular the child. I think I put a period on there - did I not - for two months. Upon the father completing the attachment-based parenting program I do order that he spend time with the child from 9 am on Saturday until midday on Sunday each alternate weekend; that this matter be adjourned to 8 May 2009 in order to allow Mr P to compile a review of the contact periods and to prepare a short family report.
There is one further matter, too, that on the last contact period of each month the parties are to facilitate handovers in this building for the purposes of a 65L report from Mr P.
RECORDED : NOT TRANSCRIBED
I further order that on a day nominated by Mr P that the child be handed over to the father at 12 noon and returned to the mother at 4 pm at the Child Dispute Services in this Court with a view to Mr P making a report in relation to 65L.
RECORDED : NOT TRANSCRIBED
Really, the final matter for determination, as I see it, is the question of the name of the child. The child has been registered in the name of Merritt Partos in the registrar of births. He has been also, I think, enrolled at J Organisation under that name, but otherwise all other documents he is referred to as Merritt.
The mother requests that that remain; that in fact he be known as … Merritt. The father says he can see no reason why it should not be Partos Merritt. I must say that in the early stages of a child's life it is not, I believe, that important that the surnames of the mother and father be recognised, but as he gets on he will find it absolutely essential that he be able to explain why - and he may find some difficulty - why he is only known as Merritt when his father's name is Partos because his father will be spending a fair bit of time with him. I have no hesitation in this case in saying he should be known as the name that he was registered under.
I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell
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