PATRICK & BALODIS
[2012] FamCA 835
•7 September 2012
FAMILY COURT OF AUSTRALIA
| PATRICK & BALODIS | [2012] FamCA 835 |
| FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time – with whom a child communicates – allegations of alcohol and drug abuse – order that child live with the father – order that father have sole parental responsibility - orders that mother spend supervised time with the child – orders that any communication between the mother and child be supervised |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC and 61DA |
| McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Mr Patrick |
| RESPONDENT: | Ms Balodis |
| INDEPENDENT CHILDREN’S LAWYER: | Terence Newman |
| FILE NUMBER: | CSC | 114 | of | 2010 |
| DATE DELIVERED: | 7 September 2012 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 7 September 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Patrick in person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Ms Balodis in person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER | Mr T Newman |
| SOLICITOR FOR THE INDPENDENT CHILDREN’S LAWYER | Newman Family Law |
Orders
All previous parenting orders be discharged in respect of the child T born … March 2003 (“the child”) are discharged.
The father have sole parental responsibility for the child.
The father is to inform the mother in writing of any significant parenting decisions or issues concerning the child including:-
(a)education;
(b)health; and
(c)any other person who may live in the father’s home.
The child live with the father.
The child spend time with the mother on one (1) occasion in each calendar month at the C Contact Service or supervised by an appropriate agency or qualified supervisor in the months of March, April, May and December to be as close as possible to the child’s birthday, mother’s birthday, Mother’s Day and Christmas Day.
The father provide to the mother each three (3) months a written notification of the days and times and places of those meetings, and if he is unable or unwilling to do so within a reasonable time, the mother may notify the father in respect of those dates.
The arrangements shall be such that the child is delivered and collected by the father and that the mother and the father not come into contact with each other at the delivery and collection of the child.
The mother is responsible for the costs, if any, associated with retaining the services of a contact service or supervisor.
Prior to the child spending time with the mother, the father or the mother will provide to the agency nominated in these orders with a copy of:-
(a)the Family Reports of Ms T;
(b) the psychiatric reports of Dr K; and
(c) a copy of these Orders and Reasons for Decision.
If the mother:
(a) arrives at the visit under the influence of alcohol or drugs;
(b) behaves in an inappropriate or irrational manner or;
(c) threatens or abuses the child or;
(d) the child is any way significantly upset
the supervisor is to immediately terminate the visit and is to advise the father in writing of the circumstances under which the visit was cancelled.
The child is to continue to engage with a Child Youth Mental Health service for counselling and assessment.
The mother shall not telephone or attempt to communicate with the child or father in any way other than provided for in these Orders (except to arrange time the child is to spend with the mother in accordance with these Orders).
The mother be restrained from allowing or permitting either of her parents, friends and/or acquaintances to be present at the times when she has face to face time and/or communication with the child except as agreed in writing between the parents.
Neither party shall abuse, demean or belittle the other party in the presence or hearing of the child.
The mother shall not communicate with the child or father in any way other than provided in these orders, except to arrange the time that the child spends or is to spend with the mother in accordance with these orders.
Upon a request to do so by the child, the father shall facilitate telephone or Skype contact between the child and the mother as is reasonably determined by the father.
The parties are to notify each other in writing of any change of residential address, email and/or Skype address and landline and mobile telephone numbers and should the father propose to move the place or residence of the child from the Town M area he shall give the mother at least three (3) months notice in writing of such proposal.
This Order is Authority for the school to provide to the mother at the mother’s expense copies of all school reports, notifications of any disciplinary action by the school or guidance officer reports, photographs and newsletters and any other information usually provided to a parent.
This Order is Authority for the child’s medical practitioners and counsellors to provide to the mother with any relevant information usually provided to a parent.
Subject to the requirements of any school principal, the mother is permitted to attend parent teacher nights and to make appointments with the school to meet with the teachers about the child’s progress, such meetings to occur when the child is not present at school or at the meeting.
These Orders are suspended during any period of time that the mother may be admitted to any hospital or facility and will resume upon her informing the father that she is in a position to take up time with the child, and the mother is to give the father written notice of such events as soon as practicable and such other or alternative arrangements for parenting as are agreed in writing between the parents.
IT IS FURTHER NOTED
Phone contact between the child and the mother is permitted in circumstances where the child counsellor supports such call or calls and is willing to facilitate a phone call or calls between the child and the mother to coincide with counselling sessions. The call to be made on the request of the child.
IT IS DIRECTED
The Independent Children’s Lawyer and Ms E shall inform the child of these orders within twenty one (21) days from the date of these orders.
The appointment of the Independent Children’s Lawyer shall extend for a period of four (4) months from the date of these orders.
All outstanding applications be dismissed except any applications for costs which will be dealt with according with the Rules.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
This matter be removed from the list of cases requiring determination.
A copy of the reasons for these orders be taken out and placed on the court file.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
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.
NOTATIONS
A.In terms of the notice, the three months notice to be given by the father at least four weeks before the expiry of each three month period and within four weeks from the date of these orders, such notice shall contain the dates of visits for the prospective three months and the notice will be given each three months in respect of those times.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Patrick & Balodis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC 114 of 2010
| Mr Patrick |
Applicant
And
| Ms Balodis |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings between Mr Patrick, (‘the father’), and Ms Balodis (‘the mother’) relating to the parenting arrangements for their son, T (‘the child’), who is aged nine and a half. The father is aged 69. The mother is aged 41. To say this child has had a difficult life; is an understatement.
The issue before me is whether, as the father wants, the child spends no face to face time with his mother, but has contact by way of telephone calls as determined by the father, having regard to the interests of the child. The father seeks to have sole parental responsibility, that the child otherwise live with him and that until such time as the mother’s illness with alcohol is effectively treated, that the effective contact between the mother and the child is terminated.
The mother’s view is that the child should live with the father, that there is equal shared parental responsibility, that the child initially spend two days mid-week with her and her mother, then spend weekends with her and her mother, eventually building up until equal time.
The Independent Children’s Lawyer’s position is that the father should have sole parental responsibility for the child, the child should live with the father, the mother should have Skype or telephone communication with the child as the father determines in accordance with the wishes of the child, and that the child spends a short period, once a month, with the mother.
The Independent Children’s Lawyer’s view is that any time that the child spends with the mother should be supervised. His preference is that the supervision take place somewhere in the Town M area, but if that does not work out, then the supervision should take place at the C Contact Service. He also proposes that if the mother is affected by alcohol and drugs or behaves in an inappropriate or irrational manner or threatens or abuses the child or the child is upset, the visit ought to be stopped. The Independent Children’s Lawyer seeks orders that only the mother attend at those visits, not the child’s maternal grandmother or others.
There is a number of other mechanical orders to which I will refer to later in these reasons. At the conclusion of yesterday’s evidence, which was before the mother gave evidence, I asked her to reflect upon what orders she sought. Two things happened today. Firstly, she essentially asked me, and I can understand why, for the orders that she initially sought, but she conceded in evidence that she was not presently in a position where she could realistically care for the child as she sought in her application.
THE BACKGROUND
In terms of the background, I note the history provided by the Independent Children’s Lawyer in terms of the mother’s involvement with drugs and alcohol set out in the chronology, which includes driving matters, operating a vehicle whilst under the influence with a child in the vehicle, driving whilst disqualified. I have had regard to the history of Mr W, I note the mother asserts she is no longer in a relationship with Mr W and has not been in a relationship with him for some time. I have had regard to the proceedings between the mother and Mr W to which the father alluded, in particular, the matters to which the father alluded to on 19 October 2010 and the various reports that followed from that.
THE EVIDENCE
The Family Consultant
Ms E, (‘the Family Consultant’), prepared two reports, one on 23 October 2010 and a second on 16 December 2011. It is of value to refer to a number of matters set out in those reports. From her report, it seems clear, and from the evidence, it seems clear that this child has been exposed to serious risk in the care of the mother. In recent years, this has been offset, at least in part, by the father’s support of the child, and in particular, since the child was placed into the father’s care in 2010.
It is significant that the Family Consultant observed attachment by the child to both parents, although, she sadly observed that the child’s attachment to the mother was ‘mediated’ by his fear about her drinking. The Family Consultant, in her first report, opined that it was better for the child to have a relationship with the mother, rather than extinguish it. She made observations about the mother’s need to address her drinking problems. She also made observations, of which I have had regard, in paragraph 40 of her report, as to the father’s then influence over the child and says:-
…I noticed him [the child] reflecting and thinking deeply about his answers, especially in relation to his mother, particularly when asked questions about his visits or the amount of time he would like to spend with her. When I asked him about this, he was giving consideration to what his father’s views might be and I gained the impression that [the child] depends heavily upon the father in his decision-making.
I have had regard to that in terms of the expression of the child to wanting limited time with his mother in terms of that which the father suggested. The second report was ordered at the end of last year. The mother could not attend, initially, at that meeting, and it was clear that it was because she was affected by alcohol, and I note paragraphs 5, 6 and 7 of that report. Ms E concluded:-
24.Unfortunately, nothing appears to have changed for the mother since the last assessment approximately 12 months ago.
25.The mother’s chronic alcohol problems continue to plague her, and none of the recommendations for in-patient rehabilitation have been actioned. She continues to live with her family of origin and remains in a domestically violent relationship with Mr W. Despite seeing the child regularly through the contact centre, the parental relationships remain strained, and there have been no other contact visits, supervised or otherwise, other than in C.
26.The father wants to restrict all contact between [the child] and the mother as a result.
27.In my opinion, given the mother’s poor prognosis and her poor decision making in the last 12 months, any future changes to her self-destructive lifestyle are highly unlikely, thereby making unsupervised visits not viable. In my opinion, there is a serious ongoing risk of harm to [the child] in any unsupervised relationship with his mother.
She then goes on to say:-
28.The question arises, then, how much value there is for [the child] in having a supervised relationship, with the difficulties that entails?
In paragraph 41 of that report, the Family Consultant observed:-
It is important to note here, that I am not advocating any unsupervised visits however there are serious dangers for [the child] if his relationship with his mother is completely severed.
In paragraph 42, she observes:-
Developmentally (usually around adolescence), children seek out an absent parent just when they are at their most vulnerable to anti-social influences. In my opinion, it is a much safer option in the long term for [the child] to have physical access to his mother, now (despite all the problems and challenges this brings) so he can be supported by his father to manage the relationship. In my opinion, the father is entirely capable of giving [the child] wise counsel, answering questions and explaining (not excusing) his mother’s difficult behaviour. …
The Family Consultant observed that the child wanted to have a relationship with his mother when she is sober and wants to see her in Town M. He wants to see his mother and feel safe at the same time. It was the opinion of the Family Consultant that this was entirely appropriate. That evidence was confirmed by her when she was cross-examined yesterday.
Dr K
The reports[1] of Dr K were read into evidence without objection. The father sought to ask questions of Dr K in relation to some interactions between himself and the Independent Children’s Lawyer. Those interactions related to some evidence the father sought to have adduced in respect of a psychiatric or psychological condition of the child. This was in circumstances where Dr K had not seen the child and where the father wanted Dr K to see the child to provide a report. The father asserted this report was primarily for the welfare of the child; although I am satisfied it was primarily for the purpose of these proceedings. I did not allow that examination for that purpose, but I accept, as does, apparently, the father, the opinions of Dr K.
[1] Filed 27 April 2012.
Dr K said of the father ‘that he did not give any evidence of psychiatric, psychological or emotional disturbance’.[2] Dr K was very strong in his view of the father and his emotional, psychological and psychiatric wellbeing. He said:-[3]
This father is perfectly capable of having sole custody of the child, and indeed, considering the whole situation, one would strongly support that view.
[2] Ibid at page 9 of Annexure B.
[3] Ibid.
He went on to say that the father is an excellent and appropriate person to hold ‘custody’, and his judgment needs to be supported and backed, if anything, by the Court. He says:-[4]
I am sure that the father will provide every opportunity for this child, and will as well as he can within the limits of his capabilities.
Any erosion of the father’s custody and care of this child would be counter-productive for the child … .
[4] Ibid.
In terms of the mother, Dr K was clearly concerned. He said:-[5]
This lady has a history of indicating that she has severe chronic alcoholism (dependence and abuse). It appears to run in the family. It is far more than a simple abuse and appears to be very long standing, with heavy consumption of alcohol at least from the age of 19, no doubt with some periods of sobriety. She has sought some assistance from AA from an early stage. She had a period of detoxification. She has had some counselling, psychological, social and work support and she is currently attending AA every day.
She is an intelligent person, and apart from her chronic alcoholism and related behaviour disturbance, I would not see her as having any other formal psychiatric disturbance.
So her chronic alcoholism then has consisted of: Heavy drinking, binge drinking, regular drinking, multiple drink driving incidents, unstable work record, unstable relationships, displays of aggression (when drinking) and it would seem a somewhat chaotic lifestyle.
This lady is one of those people who obviously has a fair amount of potential which, however, has been destroyed by the chronic substance abuse.
She is now 40, and of course, there always remains the very real possibility that she will stay off alcohol in the long term and will settle down in her life/lifestyle.
However, we simply do not have enough evidence to say that it is likely at this juncture. People who suffer from chronic alcoholism often have periods where they stay off alcohol, but commonly relapse into consumption of alcohol.
…
Before I would be able to support her having anything like joint or shared custody, I would want to see a much longer period of total abstinence, and I would need to see her having reordered and reorganised her life to demonstrate that she is reliable and a competent person.
[5] Ibid at page 7 of Annexure “C”.
He went on to say:-[6]
So I am afraid at best, I can only see this lady having continued limited supervised contact, but I am afraid the court also has to take into account - if it is correct - that she may have been intoxicated during the supervised contact. She may have also been intoxicated when she has telephoned the child.
[6] Ibid at page 9.
He observed:-[7]
She wants shared custody. I am afraid I cannot see how that could be granted under these circumstances. I see the father as being perfectly capable of full custody, making appropriate judgments, etc, for the welfare of the child. She simply does not have the history consistent with any long-term ability to make the appropriate judgements, etc, for the child.
[7] Ibid at page 10.
The child was in the mother’s care until 2010, when he was moved to the care of the father. From the information and evidence before me, it was, as Dr K said, a chaotic lifestyle. The father initially did not believe that the child was his and did not become involved in the child’s life in any significant way until about 2005, at which time, on his evidence, he said he formed a friendship with the child. It was only some time later that DNA tests were done and established that he was the child’s father.
The father
The father gave evidence in accordance with his affidavit. He is a thoughtful, intelligent and articulate man. The Independent Children’s Lawyer described the father as rigid. I accept that submission as to the father’s approach. The mother says that I ought not to believe much of the father’s evidence. However, in listening to him in the witness box, I am not convinced that he is untruthful. There may be occasions where he puts spins, if I can use that word, on things to achieve the end which he determines. His evidence about his mother and his father was particularly compelling, and in many ways, it explains why these proceedings are in court. It is also clear that he has a deep and loving relationship with this child and wants to protect the child. It is clear that he feels guilty that he was not involved in the child’s life at an earlier stage. He in fact conceded that when giving evidence.
The father is also determined to see that the mother is rehabilitated, and his solution in seeing the mother being rehabilitated is to terminate all contact between the child and the mother, in the view that this will bring about a change to what he sees, and what apparently is, a generational problem with alcohol. I generally accept him as being a dogmatic, difficult, argumentative person, but a witness who endeavours to tell the truth from his own perceptions.
The mother
The mother gave evidence in accordance with her affidavit. In many ways, I suspect the mother struggles with reality from time to time. She gave very moving and direct evidence as to the importance of this child in her life and the importance of her to this child. She conceded, when pressed, that, on the last occasion when she saw the child in a supervised way, she had been consuming alcohol. She conceded, that as part of the way to manage to these difficult proceedings, where she is unrepresented and does not have the legal skills or proper management skills that the father has, she had used alcohol to assist her through that ordeal.
I have had regard to her difficulties in that regard, but there are other aspects of her evidence which were troubling. The mother appeared to have little insight into the impact that her use of alcohol and her behaviour has had on the child. She gave it lip service to the concerns but not deep thought or actions. As a result I am careful in terms of which parts of her evidence I accept. The mother says that but for two breaches, she was not drinking for twelve months, having a break last year just before she saw Ms E and this year just before the trial. I have serious concerns as to the accuracy of that evidence, I do not believe her
The mother has not addressed her serious alcohol issues, despite the significant requests made by the father on numerous occasions during the course of their caring of this child, and I don’t call it a relationship, because the mother and father did not at any time live together. These proceedings did not induce her to spend a significant time treating her alcohol problems.
The child feels unsafe with her when he sees alcohol being involved. He is clearly happy to see her when he thinks it is safe. There is evidence from the father that the mother drinks and that her parents also have significant alcohol problems. Far from discouraging her abuse of alcohol, at least her mother drinks with her. The mother, in fairness to her, conceded that her home is not an alcohol-free home. I note that she says, and I accept, that she is free of Mr W at the moment, but the home is still a home where alcohol is significant. Her father apparently no longer lives in the home and is working and dealing with his alcohol problems in Sydney.
DISCUSSION
One of the concerns raised by the Family Consultant, to which I have had regard, was that which she set out in her reports about this child making inquiries on his own behalf to be able to see the mother if he is not permitted to by the Court or the father. The father has completely lost faith in the mother, and, in the circumstances, it is clear why. The mother is unreliable, and when intoxicated, has been abusive to the father and at times abusive to the child.
Some material was provided by Hospital R in relation to the child. The father has engaged the child in significant treatment arising out of the serious psychological, emotional and, perhaps, psychiatric issues arising from his upbringing in the mother’s home. There is some evidence that the child may have been assessed as having an attachment disorder. Having regard to the history of this child, if that is the assessment, it is unsurprising. I note that the child likes seeing his mum, says it is good, but complains about the drive. Perhaps this is an example of the father’s rigidity.
The father says he wanted the child to see the mother in the Town M area. A counsellor was found with a blue card for two hours a fortnight to see the child. The father cross-examined that counsellor in a way that has caused her to walk away from that task. The father may have had some kind of basis to be critical, in that the mother had been consuming alcohol on the day, but the child clearly enjoyed the time, and it was just for two hours. The father was determined that it would not work and succeeded, despite the child wanting to see his mother, and despite the child not wanting to undertake the long drive to C and back.
I raised with the father during the trial his negativity, and I am not sure that he answered that. I will not in detail set out the abuse to which the child has sustained, because it is clear for all to see; the black eye, the hitch-hiking, the child being locked out of the home and many others. The child has suffered abuse, neglect and violence in the care of the mother and is at risk that this will continue in any unsupervised time.
The father has engaged the child in his extended family. The father gave evidence that he is struggling with the telephone calls and the impact of the interaction with the mother. Whilst the father is a robust individual, I accept that it has had a significant impact upon him and impacts upon his ability to parent this child, and I have had regard to that, as frankly he is the only functional parent that this child has.
The mother made assertions about the father which appear to be without any basis in evidence, and the father has taken profound steps to deal with those assertions.
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
The Full Court, in McCall & Clark (2009) FLC 93-405, set out the law in relation to meaningful relationships, where they said at paragraphs 119 to 122 the following:-
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120.We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
121.In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
122.In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
That is, essentially, what this case is about. The father says that the only way to cure, and they are my words, not his, the mother is to force her into proper therapy, and to do that, the child should not see the mother. The child has a relationship with the mother, and the mother has a lot to offer this child, but only if it can only be done in a safe way. In the present circumstances of the mother, and dare I say it, of the father, it is not possible to put in place arrangements that can be otherwise seen as a holding pattern to see where it goes. That is in fact what is reflected in the orders proposed by the Independent Children’s Lawyer and on the submissions.
The father’s submissions in this area were enlightening. In Court over the last two days the father talked about the mother’s drinking and her intoxication. He asserted that if the mother sees the child, it would bring about further litigation and made various other submissions.
It was, in the father’s own words, a very hard approach, but an approach which he said met the best interests of the child. I do not agree with him. The child wants to see and know his mother and benefits from seeing her when it is safe. This needs to be done in a way which is almost a “light on the porch”, which is what the Independent Children’s Lawyer proposes, that is, once a month, and in circumstances where it would be suspended if the mother receives proper treatment.
There is a meaningful relationship between the mother and the child. Provided it is safe, there is a benefit for this child that this relationship, although in a significantly circumscribed way, continues. It is unlikely to go any further than that, unless the mother does that which the father wants her to do and seriously treat this condition which she suffers from.
Section 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This child, as I said earlier, has been exposed to abuse, neglect and family violence, and there is an unacceptable risk that the mother still presents those risks to the child if she sees the child on an unsupervised basis, or even a significant basis.
There are also risks that if I put in place the orders that had previously been in place, that is, once a fortnight, that this could undermine the relationship of this otherwise functional parent. I note the evidence of the father, but not by itself. There is also the evidence of Dr K.
Section 60CC(3)(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;
I have had regard to the views of this nine and a half year old child. He likes seeing his mother. He enjoys seeing his mother. He does not like travelling to C. And I, if nothing else, urge upon the father to find some way that this child can see the mother in a safe way in Town M, and to adopt a constructive and effective way for that to occur, rather than have this child travelling all of that distance. However, in saying this I am conscious of the remarks made by Dr K in relation to at least significantly supporting the father in his parenting of this child.
The child also said he wanted to spend some time with the mother twice a year, at Christmas and on his birthday. This, in many ways, reflected the previous position of the father and I have had regard to paragraph 40 of the report of the Family Consultant, which I referred to earlier.
Section 60CC(3)(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.
The father is a confusing person in this respect and a confounding person. He says, and I accept, that if the mother rehabilitates herself, he will restore the relationship between the child and the mother, and at many levels I accept this evidence. However, his attack on the supervisor, and his unwillingness to find a solution, caused me to wonder about his willingness to promote the relationship. I find that he is willing to promote the relationship, provided it is the way he thinks it ought to be, but he is not willing to promote the relationship that anyone else, and perhaps even including the courts, think it should be, although he has, to his credit, complied with the court orders, and I think and I accept that he is a law-abiding person.
The mother, I think, is willing to facilitate a relationship with the father, but she does not have the ability to do so. Her illness is such that when she is sober, if she is sober, she encourages the relationship between the child and the father. When she is not sober, she is destructive of that relationship. I do not think that’s something that she intends to do, but that is a feature of her illness.
Section 60CC(3)(d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)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;
The orders I make will not change the fundamental circumstances of where the child lives or who has parental responsibility. It will impose an obligation upon the father, 12 times a year, to enable this child to see his mother.
The child will continue with this treatment and will be primarily in the care of the father. The evidence of the Family Consultant is that to deprive this child absolutely of his mother would clearly not, in all of the circumstances, be in his best interests, and I accept that evidence.
Section 60CC(3)(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;
There are practical difficulties in terms of the child spending time with the mother at Town M. With goodwill, that can be solved, without goodwill, it won’t and this poor child will then need to travel to C once a month.
During the course of submissions, each of the parties raised concerns about the costs of travelling from Town M to C. The father said that he is semi-retired, in receipt of a pension, and is writing a book, but clearly from what he is saying, and I accept what he is saying as being evidence because I assume that he was under oath when he was saying those things and I note him nodding as I am saying this, that he has no income from that book at the present time, that he has no assets, as he transferred these to his former wife at separation. The mother says she is in receipt of a very modest pension and has very little money with which to fund travel to C.
I have been, or ought to be, critical, of the father’s reluctance to find a solution in terms of a supervisor in the Town M area. I did hear and accept what he said in relation to the library, but every endeavour I have made in these proceedings to try and put in place something which meets the wishes of the child, that is, to see the mother in Town M without undertaking that travel, has been met with some resistance. In those circumstances, I will not be making the order sought by the father for the $40 dollars per trip, and accordingly that order is not made.
Section 60CC(3)(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;
The father has the capacity to meet all of the needs of this child except, perhaps, his need to know his mother, broken though she is. The mother does not have the capacity to meet the needs of this child and has demonstrated that lack of capacity over a significant period of time.
The father, in recent years, has shown a significant positive attitude to the responsibilities of parenthood and ought to be and is commended for adopting that approach. The mother, unfortunately due to her illness, has not been able to do that.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family; and
Section 60CC(3)(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;
There is family violence and family violence orders which are set out in the material. There is no need for me to repeat them here, bearing in mind the nature of the orders that I am going to make.
Section 60CC(3)(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;
These will be final orders, and not interim orders. If the mother does what clearly the father, the Family Consultant and the psychiatrist say, that is, undertake long-term rehabilitation in respect of her alcoholism, then it will be a matter for her to either persuade the father, and he has made it clear that he is willing to invite the mother back into the child’s life at a proper level if that occurs or come back to a court. I suspect that if the mother provides, although I do not know and do not wish to bind any future court, a year or two of objectively sustained treatment and outcomes, that this is possibly a matter which would meet the threshold in Rice & Asplund,[8] but that is a matter for other judicial officers at other times.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
[8] (1979) FLC 90-725.
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
The mother has failed to properly participate in recent times in the long-term care of the child, including medication and protecting the child from the matters which I have alluded to elsewhere. The father has done so, at least since 2005 onward, at an increasing pace.
PARENTAL RESPONSIBILITY
The first determination I have to make is in relation to parental responsibility. There is only one person who can properly deal with parental responsibility, that is, the father. Having regard to the factors which I have alluded to elsewhere, that order should be made. Clearly the father should be the primary resident parent, and I have made that order as well. I have a different approach from the father in terms of the time the child spends with the mother.
For the reasons I have articulated and set out above, it seems to me to be appropriate that the child should spend a couple of hours per month with the mother. I intend to frame that order so that it includes time around significant dates in the child’s life, such as Christmas, Mother’s Day, the child’s birthday and the mother’s birthday. They will be important for the child. Any time that the child spends with the mother must be supervised, and it must be supervised in a way that the supervisor can terminate the contact. The supervisor needs to be aware of the comments I have made, the material in the family reports of the Family Consultant, the psychiatric report of Dr K and the orders that are in place.
The father agrees that the child should continue with the Child Youth and Mental Health Service for counselling and assessment. I am going to make an order restraining the mother from allowing or permitting either of her parents, friends and/or acquaintances to be present at the time she has face to face communication with the child, except as agreed between the parents. Having regard to the telephone calls that have been made, it seems to me that it is appropriate to make an order that neither party abuse, demean or belittle the other party in the presence or hearing of the child. The father has had to endure telephone calls from the mother when she was intoxicated. This has impacted on his ability to take telephone calls and to parent this child.
Accordingly, I will be making an order that the mother not telephone or attempt to telephone or communicate with the child or father in any way other than provided by these orders, and I will also make a provision that the child can communicate with the mother by telephone or Skype as arranged between them, and I make it clear that that is a determination primarily by the father, having regard to the needs of the child. Each party shall keep the other informed as to their addresses, telephone numbers, landlines and email addresses, and that should the father propose to move the place of residence of the child from the Town M area, he will give the mother at least three months notice in writing of such a proposed move.
At the request of the Independent Children’s Lawyer, and with the consent of the father, and, I think, the mother, I will put in place authorities in relation to the school, medical practitioners and for the mother to attend the school. Those two are by consent. I will also make an order to enable the mother to attend at the school when the child is not there, and I make that clear when the child is not there, to speak to teachers, and that this will be subject to any requirements of any school principal, and I will put in the orders ‘such as sobriety, etcetera.’ I will also provide that if the mother does admit to a hospital or facility, the time she has with the child will be suspended, and I will provide that the mother would need to inform the father as soon as practicable of any such arrangement.
I will note that it is appropriate for the child to have telephone calls with the mother, where the child counsellor supports such calls and is willing to facilitate calls between the child and the mother and such calls are to coincide with the counselling sessions. I understand that that order is made by the consent of the parties.
Finally, I will make orders that the Independent Children’s Lawyer and the Family Consultant inform the child of these orders within 21 days and extend the appointment of the Independent Children’s Lawyer for four months.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 7 September 2012.
Associate:
Date: 7 September 2012
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Family Law
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