Picpus and Sentier
[2008] FamCA 310
•29 February 2008
FAMILY COURT OF AUSTRALIA
| PICPUS & SENTIER | [2008] FamCA 310 |
| FAMILY LAW - CHILDREN - with whom a child spends time - supervised contact |
| Family Law Act 1975 (Cth) ss 60B(1), 60CC(1), 61DA(1) and (2) |
| FATHER: | Mr Picpus |
| MOTHER: | Ms Sentier |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLF | 4305 | of | 2003 |
| DATE DELIVERED: | 29 February, 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 26, 27, 28, 29 February, 2007 |
REPRESENTATION
| COUNSEL FOR THE FATHER | Ms. M.F. Brenton |
| SOLICITOR FOR THE FATHER | Victoria Legal Aid |
| COUNSEL FOR THE MOTHER | Mr. G. W. Casement |
| SOLICITOR FOR THE MOTHER | Heinz & Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr. P.A. Marchetti |
| INDEPENDENT CHILDREN’S LAWYER | McClusky’s Lawyers |
Orders
That all previous parenting orders and injunctions in respect of the children H born … July, 1999 and R born … February, 2002 (“the children”) be discharged.
That the mother have sole parental responsibility for the children.
That the children live with the mother.
That the mother be permitted to relocate the residence of the children to the State of Queensland.
That the chilren spend time and communicate with the father as follows :
(a)subject to paragraph (6) hereof, in Melbourne, on a supervised basis, for a minimum period of six hours, on six occasions in each year, the dates and times to be agreed, and in default of agreement :
(i)on the third Saturday of each school term from 11:00 am. until 5:00 pm. and for the purpose of this order, the relevant school term shall be the term at the school or schools then attended by the children;
(ii)on … November from 11:00 am. until 5:00 pm.;
(iii)on Fathers’ Day from 11:00 am. until 5:00 pm;
(b)by telephone :
(i)on each Sunday; and
(ii)on each of the children’s birthdays, if they are not otherwise with him on that birthday PROVIDED THAT :
A.the father initiate such calls between 6:00 pm. and 6:30 pm. (in the State in which the children are resident) to a number nominated by the mother and the mother do all things reasonably necessary to ensure the children are available to communicate with the father; and
B.the father be and is hereby restrained from denigrating the mother during such communications and from asking the children where they live;
(c)by way of letters, cards and gifts forwarded by ordinary pre-paid post by the father to the children at a postal address nominated by the mother, and the mother be at liberty to review such material and pass it to the children if she considers it to be appropriate; and
(d)at such further and other times and upon such conditions as may be agreed between the parties from time to time.
That time spent with the father pursuant to paragraph (5)(a) hereof shall be supervised by one of :
(a)Ricki Hazelhoff;
(b)Angelicou Contact Services;
(c)Aiding and Caring Sitter’s Agency;
and the mother be responsible for the costs of supervision and confirm with the father in writing five clear days prior to each supervised period that one of the nominated supervisors shall be available for such supervision.
That the father be and is hereby restrained from consuming any illicit substance and alcohol for a period of 24 hours prior to the commencement of a period of time with the children and during each period of time with the children.
That each person who supervises the father’s time with the children pursuant to paragraph (6) hereof shall be provided by the mother with :
(a)a copy of these orders;
(b)a copy of the reasons for judgment delivered this day;
(c)a copy of the Family Report of Ms. C, dated 29 October, 2007; and
(d)a copy of the ARBIAS Report dated 20 July, 2006.
That the mother keep the father advised of any serious injury or illness affecting the children.
That the mother forward to the father a copy of each school photograph and each school report relating to the children within 28 days of receipt by her of the photograph or report PROVIDED THAT the mother be at liberty to delete anything in those documents which could tend to identify the children’s residential address.
That each of the parties be and are hereby restrained by themselves, their servants and agents from :
(a)denigrating the other parent in the presence or hearing of H and/or R, and from allowing any other person to do so; and
(b)discussing these proceedings (including evidence adduced in the proceedings, allegations made in the proceedings and the judgment delivered this day) with H and/or R or in their presence or hearing, and from allowing any other person to do so.
That the mother and father each keep the other advised of a postal address to which correspondence can be sent and a telephone number at which he or she can be contacted in an emergency.
That a copy of the reasons for judgment delivered this day may be made available to :
(a)Ms. C;
(b)any medical practitioner, psychologist, counsellor or like professional working with H and/or R;
(c)the principal of each school attended by H and R and, in the absolute discretion of the principal, any teacher or other staff member working with H or R;
(d)a member of a police force involved in the investigation of any alleged offences which involve the mother, father and/or H or R; and
(e)a State or Commonwealth department investigating any notification relating to the health or safety of H or R.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.
That all extant applications be otherwise dismissed.
That these applications be removed from the List of matters awaiting finalisation.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
AND THE COURT NOTES
That the father consented to the making of the orders contained in paragraphs (2), (3) and (7) hereof.
IT IS NOTED that publication of this judgment under the pseudonym Picpus & Sentier is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 4305 of 2003
| MR PICPUS |
Father
And
| MS SENTIER |
Wife
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
This case concerns the time the father is to spend with the parties' two sons, H and R. H will be nine in July, R is six. The parents met in 1994 when the father was a client of the mother where she then worked. They commenced what could be described as an intermittent relationship. They never lived together. There is much dissent about the nature and extent of their relationship and their respective intentions but it is not necessary to traverse evidence relevant to that, as these events occurred before H’s birth in July 1999.
The father reported that he did not meet H until he was eight months old. The mother's case was that the father was abusive and contrary after H’s birth. His evidence was of spending time with H, on three occasions until about April 2003. It was in April 2003 that the father says he first met R, who was born in February 2002. The boys have always lived with their mother and their residence is not in issue before me. She and the children presently live in Queensland.
Proposals
The trial commenced on the basis that the father sought the orders set out in the amended application for final orders filed by him on 17 January, 2008. In that, he sought the discharge of all previous orders and that the children spend time with him between 10am and 6 pm on six occasions in each year, and communicate by telephone once a month. He also sought that he communicate by sending letters, parcels and cards to an address nominated by the mother and that the mother keep him informed of the residential address of the children, on condition that he agreed not to attend the residential address, or to use that information to contact the mother.
An alternative proposal was put by his counsel in final submissions, having regard to evidence adduced when the mother was cross‑examined. In response to the mother’s evidence of an intention to come to Melbourne once a month, he proposed that he see the children on the Saturday in each month on which she came to Melbourne, rather than six occasions per year. While I am not critical of counsel for not addressing that issue earlier (as it was only raised when the mother was in the witness box) the mother could have been cross‑examined about her travel and accommodation arrangements. Nothing was teased out as to how such a proposal could be achieved in terms of bringing the boys to Melbourne; the financial ramifications beyond the six visits which the father had earlier proposed; what care arrangements could be made for the boys in Melbourne; and other relevant matters.
The mother's original proposal was that the time the father spent with the children be supervised. Her proposal was also conditional on him attending psychological counselling, and undertaking an appropriate course to learn how to manage his behaviour when frustrated, and about parenting. Having heard his evidence, and the evidence of Ms C, the mother abandoned that aspect. Her final application was for six occasions of supervised time in each year. The mother concurred with the proposals of the independent children’s lawyer, save for one matter, to which I will refer later.
A minute of an order proposed by the independent children's lawyer was tendered. That order would provide for the children to spend time and communicate with the father in Melbourne, on a supervised basis, for a minimum period of six hours, on six occasions a year. It specified that the supervisors be commercial, private supervisors from three named organisations and noted that the mother was prepared to pay the children's costs of travel to Melbourne and the costs of professional supervision. A copy of that minute of proposed orders is attached to these reasons for judgment.
I am grateful that the independent children's lawyer was present in court for much of the hearing. I appreciate he will not be paid for his attendance, having regard to the recent changes in legal aid. This case demonstrates, in my view, the vital importance of an instructing solicitor’s presence during a trial which involves a legally aided client. It is particularly important when the party to litigation experiences the difficulties the father experiences. The father is at court alone. His counsel cannot fulfil the role of instructing solicitor. Similarly, it would have been very useful to counsel for the mother to have had an instructing solicitor in court, who could take instructions, speak with the client about matters of relevance and the behaviour expected of a litigant in the courtroom. Counsel for the mother and father did their best to get by without that, in my view, essential assistance.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make, it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
EVIDENCE
Findings are made on the balance of probabilities, having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
Each of the parties relied on affidavits sworn by him or her and on a number of expert reports. Dr K saw the father in 2004. He has not seen him since. His report was before the court. A neuropsychological assessment report, dated 20 July 2006, from the Acquired Brain Injury Assessment Service (ABIAS) was before the court, as was a family report prepared by Ms C, a family consultant employed by this court. It is dated 29 October, 2007 and is the most recent expert evidence available. There are also two reports relating to the time the father spent with the children at a supervised contact centre. The latter of those is annexed to an affidavit sworn by Ms R, which was filed on 22 August, 2006. Evidence about the children's interaction with the father since then must be gleaned from the parties' own accounts.
The parties and Ms C were cross-examined. Each of the parties did their best to tell the court the truth as he or she now perceives it. Each reconstructs events through a lens coloured to refract his or her current views.
In general, I am satisfied that the mother was a witness of truth. Observing her in court, she is a very expressive woman. She found it difficult, as many litigants do, to sit quietly while their lives are being rehearsed before a stranger. She was also clearly frustrated with aspects of the father's evidence.
The evidence, and I will refer to this in more detail, does support a finding that the mother has been very supportive of the father having a relationship with the children. Reasonably, she now operates on the basis that there is potential for the father to misconstrue any contact with her as indicative of a desire to resume some more intimate or close relationship.
The mother is 42. She is presently living in Queensland. She moved there from Victoria in November last year to, she said, undertake a physiotherapy course which, she deposed, commenced in November, 2007. I have no other evidence about that course. She is living in rented accommodation with the boys in Queensland and has settled there. She has leased her home in Victoria for two years, anticipating that to be the duration of her stay in Queensland.
The mother has a daughter from an earlier relationship, who will be 19 in September. She remains in Melbourne and is engaged in undergraduate study of some sort.
The mother’s oral evidence is that she may not continue with the physiotherapy course, as she is finding it hard “to keep up”. She referred to having to spend time in Melbourne for the trial and said, "If this goes on, I may stop." She also said that her motivation for doing the course had more to do with the qualification than any intention to practise.
The mother receives Centrelink benefits. She candidly told the court that she proposes coming to Melbourne once a month this year to work on a Friday and Saturday night. I took her to mean she would work in the entertainment industry, as she has before. Ms C reported that the mother told her that she was still working on a regular, but infrequent, basis.
The father is also 42. He, too, found it difficult to contain himself in court. His evidence was of spending four nights a week at his father's home in a northern suburb of Melbourne, and some time on a block, which he referred to as a family block, in regional Victoria. He said he is trying to build a house, despite continuing financial problems; he owes some $700 for fines and some $30,000 to the National Australia Bank. He does not have any permanent accommodation of his own which would be suitable for the children.
On his own evidence, his father is difficult to live with. He deposed that his father is often frustrated by having him in the house, and asks him to leave. His father obtained an intervention order against him, which is current. The father is also in dispute with his sister about matters relating to the use or ownership of the rural land. She, too, has obtained an intervention order against her brother.
The father is on a Newstart Centrelink allowance and gets casual work as a labourer.
Evidence was adduced of an incident which occurred in the courtroom on 27 February, immediately after a temporary adjournment. I did not see the incident but heard aspects of it, as the court door closed. A hubbub arose. Later, I heard evidence of what occurred and I accept as true the account given by the mother. The father told me that he was "not really physically threatening", but agreed he made comments, including apparently wild comments about a connection he allegedly has with Mr Mokbel. I accept his evidence that he has no such connections. He said that he meant it as a joke, and that he was “scared”. I take into account the way he used that word (scared) when speaking of the anxiety he experiences when unsure about what is happening. At various times, speaking of his time with the boys, he used words like "frightened", "scared", "anxious" and "paranoid". Nevertheless, what occurred in the court was an example of his volatility; whatever his intention, his physical actions and gestures, and the words he used, were reasonably interpreted as aggressive and threatening.
When I was in the courtroom, he was courteous and, in the witness box, respectful. I accept that he did his best to tell me the truth as he recalls it. Sometimes he took a little time to explain his recollections. Often, as an explanation continued, one could see aspects of his account which were consistent with other evidence which he had initially denied.
I find Ms C to be a witness of experience and insight. It was good of her, and went well beyond the limits of her professional duties, to offer to supervise a period of contact between the father and the boys during a lunch break in the course of the trial. I appreciate that time was, from the father’s perspective, much too short and his interaction with the boys was, of necessity, contained as he saw them in the childminding room at this court. Nevertheless, it was the first face-to-face contact he had had with his sons since last August, save when he saw them during the preparation of the family report. Ms C was able to confirm that their joyful interaction was consistent with her earlier observations of them together.
LITIGATION HISTORY
The background can be dealt with briefly, given the ambit of the dispute before me. The father commenced these proceedings on 18 March, 2004, almost four years ago, seeking DNA testing in respect of paternity. On 11 August, 1994 Wilczek J made orders for DNA testing. Orders provided for the father to have contact with the children in the event he was proven to be the father. DNA proved he was, as had been maintained by the mother.
Earlier in 2004, a psychiatric assessment had been ordered and the father was ordered to attend a men's behaviour change program at LifeWorks, which he did. Dr K’s psychiatric assessment is dated 2 August, 2004. In his opinion, the father had ongoing psychiatric difficulties, with indications of a personality disorder with wide-ranging implications. Dr K diagnosed a chronic anxiety state. He said that in overall terms, the father presented as someone who had difficulty following a sustained pathway. From a psychiatric point of view, Dr K believed the father would benefit from psychiatric treatment. He recommended that his initial contact with the boys should be supervised.
Orders subsequently provided for the father to spend time with the children on a supervised basis at the … Children's Contact Service, for two hours on each alternate weekend. The report from Ms R suggests some 21 visits. The contact was terminated by the service following some general concerns about the father's interaction with the children and specific behaviour at the centre on 19 February, 2006.
Ms R reported that only one visit was cancelled by the mother; all other visits occurred. The father was generally punctual. He engaged in numerous activities with the children. On some occasions, they interacted with him but at other times little interaction occurred. On two occasions he was asked not to give the children toy guns because it was against the service’s policy on weapons. On occasions he had to be asked to restrain from rough play, involving throwing cushions. He bought food for the children which he cooked on special days, including Father's Day. Generally the children and the father embraced when saying goodbye.
The incident that initially raised concern was on 12 August, 2005, when the father asked to leave the contact centre after the children began fighting and hitting each other. His response was to retreat. He returned a few minutes later, and told the worker that he left in order to give the children a fright. By then, the children were sitting on the couch. He began to talk to them about their misbehaviour, telling them how his father would hit him when he was a child, if he misbehaved. He then began shouting at the children. At that point, the workers intervened and removed the children, who were returned to the mother. Workers reported that the father called the mother an idiot and a prostitute in front of the children, and said she should be at home, looking after her children.
The service reported that when workers talked with the father about his inappropriate behaviour and language, he told them he wanted to apologise, and that “he hadn't been himself”. The father's account of that day was rather different. When given an opportunity to talk more discursively about it, his account was consistent with many aspects of that summary. He denied calling the mother a prostitute, and may well have forgotten that he did.
The visit which resulted in the centre withdrawing its services was on 19 February 2006. On that day, workers reported that the father made comments denigrating the mother. Importantly, his discipline of the children was inappropriate. A worker reported that he picked R up by the back of the shirt, which led to R going red in the face. When he threatened to throw R out the window, the workers became frightened.
Again, the father's version was different, but shared many elements of the worker’s account. He attributed R going red to knowing he had done something wrong. He indicated that he was only holding R by the upper sleeve of his jacket. He said that his threat to throw R out the window was made in jest.
Another visit had been arranged for 5 March, 2006. That visit was cancelled by the service, following a phone conversation with the father, who could not understand how his behaviour on 19 February could have impacted adversely on the children. He blamed the mother for the children's behaviour; in his view, the children had been told by their mother to behave badly, to jeopardise his contact with them. The centre decided that continuing the visits in that environment was not in the best interests of the children.
It was in July that year that the father undertook the neuropsychological assessment at ABIAS. I do not propose to summarise the whole of that report, but I place weight on it. Its author was not required for cross‑examination. The report concluded that the father's intellectual abilities are in the low average range. As his counsel said, by definition that must mean that there are many people in his position. His perceptual skills fell in the low average to average range, and his verbal skills fell in the very low, to low average range.
The problems the father experiences are problems which tend to impact on logical thinking, verbal abstract reasoning and an ability to make sound commonsense judgments. This was borne out by his presentation in court. His problems with verbal skills make it hard for him to acquire information presented verbally. Seeing, rather than reading or being told, is likely to be much more effective. As had Dr K, the author of the ABIAS report recommended supervision of the father’s contact with the children.
Eventually, arrangements were made for the father to resume spending time with the children from August 2007. His father was to facilitate this time and to be substantially in attendance. That arrangement was made between the parties; there was not an order in those terms.
Notwithstanding that arrangement, it is clear from the father's evidence that his relationship with his father, who is now 80, was not such that his father was ever likely to play any genuinely facilitative role; the father was quite candid about that. It is probable that his father was not at all supportive of having the children in his home on monthly visits from Saturday through to Sunday. The boys are noisy. They are no doubt energetic. This, coupled with the paternal grandfather's difficulties with and antagonism towards his own son, prompted the father, at least on occasions, to suggest contact occur at the rural property, which occurred.
The mother cooperated with the father’s desire to take the children to the rural property. She cooperated further by inviting the father to join the boys and her on a camping trip to Rye, and to stay one night of a several‑night holiday. Between November 2006 and August 2007 there were some 10 visits. The mother delivered the children, and the father brought them back on the train to where the mother was then living. I accept the mother's evidence that she knew the grandfather was not present on at least three occasions. The evidence is that on those monthly occasions when the boys were with their father, she was working in the entertainment industry.
The mother's evidence was of escalating concerns about the father’s time with the boys, and his failure to supervise them adequately. She was keen to ensure the boys saw their father, and hoped that he would be able to supervise them and exert parental authority. I do not propose to detail all her concerns in these respects, and the father's responses to them, but some reference needs to be made to a number of incidents.
In the course of his second visit, in December 2006, the father bought the boys cap guns. He gave me a candid and quite colourful account of what occurred. He knew that the mother did not support the children having toy guns. He knew that the contact centre did not support them, either. Nevertheless, he bought the guns for the boys and showed them to them when the mother was present. When she reiterated that she did not approve, and said she did not want the boys to have the guns, he told her he would discard them. When she left, he retrieved the guns and let the boys play with them. He told them they would have to hide the guns so their mum did not know about them, or find them.
When the mother arrived to collect the children at the end of his time with them, to his annoyance and, I am satisfied, subsequent anger, the boys had taken the guns out and, unsurprisingly, were gleefully playing with their new acquisitions. Faced with the prospect of the mother discovering that he had not done that which she had asked him to do, he grabbed the guns, threw them behind the TV and, going to the door to greet her. He then demonstrated (by tone of voice and demeanour) the way he said to her, "everything is normal"; it might have alerted any parent to the potential for abnormality.
The children's account to their mother of the father throwing the guns against the wall almost certainly relates to the guns hitting the wall after he grabbed them from the boys and endeavoured to throw them somewhere where the mother would not be able to see them. To his credit, he was frank about the episode, but it illustrates a number of the difficulties that arise in this case.
There was then reference to the father taking the children to see the Spiderman movie. Spiderman is an M-rated movie. That is an advisory classification, not a prohibitory classification. Films rated M are not recommended for children under 15; they are recommended for a mature audience. In January 2007, the boys would have been nearly five and seven. Again, once the father was given an opportunity to talk about this, he volunteered that R was a bit scared; he thought this was because it might be a bit dark. That he was aware of R’s unease is demonstrated by his evidence that at one point, he said to R, "If you don't want to stay, we can go”.
I do not doubt that the children told their mother the account to which she deposed. I do not take the view that the father had an ulterior motive; from his perspective he took the children to watch a movie that he hoped they would enjoy. He probably equates their enjoyment with his enjoyment; he assumes they will like the things he likes. But care needs to be paid to the films and videos that children watch and children of their ages need to have their viewing supervised.
There was then what was referred to as the “slimy fish episode” later in 2007. I do not for a moment find that the father gave bad or rotten food to the children. “Slimy fish” may well have been a child's description when given grilled, rather than battered and deep fried, fish.
The father, given an opportunity, spoke about taking the boys to a property at which he did some gardening or maintenance work. There was a pool, under a cover. The boys wanted to swim. He really was not sure that he wanted them to have a swim. He told them that the pool was not very clean but as they really wanted a swim, he took the cover off and they had a swim. To me, he said it was not very clean but it was “not a swamp”. The cleanliness or uncleanliness of the pool may have had absolutely nothing to do with the subsequent illness of one of the boys, as reported by the mother. A child can vomit for any number of reasons. But his own evidence illustrates his tendency to let the children make decisions which should be made by an adult. He did not feel able to deny the boys something they wanted.
A camping incident, in February, 2007, is of more concern to me. I cannot accept the slant put on it by the father's counsel. First, I accept the mother's account of what she observed, and what happened. Second, even were I to accept the father's account, it was an account of inept and risky parenting. On the father’s own account, the children were left unsupervised on the beach, with him up to 25 metres away from them. He looked a little incredulous when I put to him that children can drown in 10 centimetres of water. He had been comfortable with leaving them there, because the water was actually shallow and there was some distance before the “water got to a metre”. Boys of five and seven cannot be left unsupervised on even a crowded beach. He seemed to assume that someone would have noticed if the boys got into trouble. I accept that he did what he did without malice and did not intend to expose them to harm but he demonstrated a lack of understanding of the need for close scrutiny of children of this age.
I am also concerned by the evidence of the children's accounts of their father’s statements about their mother. Again, the court need look no further than the father’s own evidence. As I noted, both parents found it difficult to contain themselves in court and not to tug at their barristers, and tell their barristers what they thought of the process.
A number of things the father called out in the course of the hearing were consistent with the mother’s evidence, particularly his notion that people who are not supportive of his time with the children are jealous. At least once, he called out in court that the mother and/or her daughter were jealous of his time with the children. I accept that is his view. The evidence of the experts corroborates the father's tendency to talk about what is preoccupying him, even if it is tangential to the subject at hand, and it is probably he has talked to H about his own problems with his sister, and to both boys about his view of their mother. When he was asked what he would say to the boys about the mother, he initially thought, (reasonably), that he was being asked his own view of the mother and said he “probably should not say anything”. That would be wise counsel for the future, unless what he says about her can be complimentary.
In the course of the last contact the mother organised, in August 2007, he brought the boys to Spencer Street Station, to return to their mother. The father said he was outside in the street, smoking a cigarette. The children were in the station but behind a glass wall, so visible to him. He said it was near Spencer and Collins Streets; he was aware of the geography and the buildings. The children were in the station but behind a glass wall so visible to him. He said he told the boys not to run onto the platforms. The children told their mother that they had been left alone on the platform. Whether they had or had not, boys of eight and five are likely to find the station an exciting place to be, and the excitement is in the trains. It is not appropriate, even if they were in eyeshot, to leave them there alone. If he had wanted a cigarette, he could have taken the children out on the street with him rather than take the risk that they would disobey his injunction and dash off to look at the trams.
I doubt R literally nearly choked to death, as he reported to the mother. Choking to death is a figure of speech used by adults, and a child might also easily use the expression. I do not doubt R told his mother he had nearly choked to death and I do not doubt that something happened while he was sucking on a lolly that caused him some distress or anxiety. As the father was outside in the street, he could not know what was happening inside. Even if he were watching through the glass or perspex panels, children can turn their backs, and vision can be obscured by other people milling through the station. His explanation was not reassuring and reasonably would leave the mother in doubt about his capacity to supervise his son.
I am not so concerned about the time the children arrived home at the end of the contact periods. Many children see a parent at a weekend and get home a bit late, and learn to accommodate that. I am not so worried about them being “stuffed full of lollies”, if they were, on one or more occasions. Many parents who do not see their children feed them on sweets and lemonade when they do, particularly if it is only once a month. My concern is not the time the children arrived home but the difficulties the father frankly expressed about his own inability to keep to an agenda or a program. It is likely he often missed the train or trains, and ended up on a much later one. He said that he always got them back late because so many things interrupted his time with them. That is indicative of him having a good time with them and time disappearing. But his evidence was also indicative of him finding it hard to manage them and finding it a bit hard to get them to cooperate.
Since August 2007, there has been no contact between the father and the children, save for the time with Ms C to which I referred. There was some phone contact but problems bedevilled that, too. An intervention order restrains the father from ringing the mother, but she allowed him to have phone contact with the boys. That stopped after the father called the police on 29 October, 2007 and reported the children to be at risk.
The evidence of this is indicative of the difficulties the family faces. The father had absolutely no grounds for believing the children to be at risk. He had been speaking to one of them on the phone. He variously said that he thought the mother might have, perhaps, been going to have a wild party, or “something might have been going to happen”. There was not a scintilla of evidence that anything said by a child could give rise to his belief that she might be going to have what he called “an horrendous party”. Nevertheless, he rang the police and asked them to go to the mother’s home and see if the boys were okay; he asked them to tell the boys he loved them.
Police have a difficult enough role without needing to respond to calls of this nature. It is unlikely his recollection of what he told the police is accurate and whatever he told them, it convinced them they should make a welfare call. Police attended the mother's home and spoke with the boys. That is not in their best interests.
After that, the mother was, not surprisingly, wary of further phone contact. The following month she moved to Queensland. I do note her evidence that she was in Melbourne for three weeks over the Christmas 2007 period. Her explanation as to why she did not tell the father she was here, or provide contact, is indicative of the problems the parties were experiencing. It is unfortunate that some contact was not provided. In my view, it would have had to be supervised at that time and there was no obvious supervisor. The father's father was out of the question. She was out of the question, having regard to the intervention order. The party’s lawyers were not involved.
I turn now to the matters to which the court must have regard when considering where the children’s best interests lie.
PRIMARY CONSIDERATIONS
When determining what is in a child’s best interests the primary considerations are :
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These are consistent with the objects set out in s.60B(1). The evidence summarised and the findings made illustrate the tension between the two primary considerations. It is important that children have a meaningful relationship with their father but it is vital they are protected from the potentially serious consequences of poor supervision and poor parenting. The court must assess the risks to which the boys may be exposed in the father’s care.
ADDITIONAL CONSIDERATIONS
(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 place weight on the views expressed by the children to Ms C. They want to see their father. They love spending time with their father. They view their father as a mate; he is someone they have a good time with. H, when interviewed by Ms C, said of his father:
I love seeing him. I miss him really much when I don’t see him. He’s still a young boy because he lives with his Dad and is not allowed in the back yard and the ‘frig has got a lock on it. He tells us how his Dad used to be an army man carrying all the missiles to the ships, and he also worked in the gold mines”. “He can’t help me with my homework because he is not that smart, but he can write a bit, but not add up.”
R, who was only 5 years and 8 months when interviewed, also told Ms C that he liked seeing his father and liked his beard, and
…I don’t get scared when he’s angry, I just say sorry. He lets us have lots of lollies, but I don’t feel sick, and I like dad and want to keep on seeing him. He lets us sleep at his house, all in the same bed, and we go to bed at 8 o’clock, all of us. Sometimes Dad smokes outside and drinks beer, and then he smells.
H and R are too young for their views to be determinative but their love for their father, their joy in interaction with him and their insight into some of the difficulties he faces, are all apparent in the evidence before me.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
Nothing in the evidence suggests that the children’s relationship with their mother is anything other than excellent. She has been the primary carer since their birth and their attachment to her provides them with security and stability.
The children love the way their father interacts with them, but also need adequate supervision and parental guidance. They have more insight into his difficulties with parenting them than he has; this is borne out by what they told Ms C in their interviews with her, to which I have already referred.
The father told Ms C that he wants to be the boy’s buddy, not their firm dad all the time. That is a reasonable aspiration, at times, but he must also be their firm dad at other times, in order to keep them safe, and to act as a mentor and modeller of behaviour.
I can say nothing of the children’s relationship with the father’s relatives. His own relationship with his father and sister is rather fraught. He has godparents who he sees; one is in the inner northern suburbs and one is in the outer northern suburbs. Ms C reported that he told her that his godparents spend time with the boys every three months. However, before me, he said that his godfather and godmother have seen H twice, and R once. He said the last contact was probably late in 2006; it appears there was no interaction with them in the period in which he spent time with the boys in 2007.
(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
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(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:
(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.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
An order for shared parental responsibility was not proposed by the father on practical grounds. Inherent in that position is his trust and confidence in the mother’s capacity to act in the children's best interests. I am satisfied she generally has encouraged them to see their father. She said in the witness box that she did not accede to a proposal, put to her by either the ICL or counsel for the father, that the only contact or communication the boys have with their father be by phone, twice a week. She thought they needed to spend physical time with him. Her failure to arrange for them to spend time with him at Christmas 2007 needs to be seen in the context of the police involvement of which I have spoken and the context of this continuing litigation, which was then on the cusp of trial.
It is very likely that the father's difficulties in his parenting arise from his cognitive and psychological limitations. He says that he gets frightened and panics when with the children, when things are not going right. To use his words, this happens when they run amok. Once, he described their behaviour as disgusting. He tends to resort to either withdrawing, or yelling. When he was allowed to speak freely in the witness box, he communicated both his love for his sons and the difficulty he has in identifying situations which could place them at risk. He finds it hard to understand the difference between the parental role and that of a peer. I am confident he would never deliberately neglect his boys and would never deliberately compromise their safety. However, it is not motive and intention that is relevant; it is actions.
The father spoke of his own observations of his father's parenting of him, which included some physical violence, and of seeing his father “bashing” his own mother. It can be hard to model a different style of parenting than that which one experienced, without professional assistance.
There was some evidence about the father's use of marijuana. Prior to the trial, he variously said that he used it occasionally, or infrequently. In my view he was candid about this in the courtroom. He said he had not had any marijuana in the last three or four days. He admitted to smoking on a weekly basis; he said he smoked three to four times last week. He complied with only five of the independent children's lawyer's requests for drug screens and of those, four were positive for cannabinoids. The last screen was in 2005.
The mother did not express a concern about his smoking of marijuana; indeed, her evidence was that it calms him. I accept that, from her perspective, that calming reduces the potential for volatility. If he is calm, his time with the children will be less disrupted and disruptive, and his interactions with her will be less hostile.
My concern is the capacity for the father’s marijuana use to impact on his parenting capacity, which is already compromised. Marijuana can take the edge off a parent's attentiveness and make him or her less alert, albeit more relaxed. Like abuse of alcohol, it can inhibit the capacity to act appropriately in a crisis, to make sound judgments, to drive in an emergency. If the father's contact is unsupervised, it is absolutely vital he be alert and responsive. I do not find it appropriate for him to be affected by marijuana when with the children. Even if the contact is supervised, a supervisor's role is not to look after the children while the father plays a passive observer role; it is his time with the children and he should be alert and responsive.
I accept, through his counsel, that the father is content to consent to an order that he neither drink alcohol, nor smoke marijuana, in a 24 hour period prior to time with the children. An order in those terms is sought by the independent children's lawyer. It is specifically not sought by the mother. However, in my view, and whatever the outcome of the case, it is an order which should be made.
(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;
First, it is useful to look at the contact the father had with the children before the mother moved the children's residence to Queensland. It was at a contact centre in 2005 and early 2006, then overnight, once a month, between November 2006 and August 2007. The latter period was meant to be facilitated by the paternal grandfather and he was to be in substantial attendance. That did not occur. Second, the court needs to consider the father’s proposal now, which is for day contact only. Third, the court needs to consider Ms C’s recommendations, and the difference between the time she recommended were the children to remain in Victoria, and the time recommended, were the children to live in Queensland. The difference was in frequency; but she made no recommendation, wherever the children were living, for anything other than supervised time with the father during the day. If the children were here in Melbourne, she recommended monthly contact; if they were in Queensland, she recommended three-monthly contact.
I take account of the evidence that the father told Ms C he did not oppose the mother going to Queensland, despite knowing that he would not be able to have regular time with the boys. He accepted that the mother needs to make decisions which are good for the children, and that is much to his credit.
I have referred to the mother's evidence of planning to return to Melbourne about once a month for work. I have no clear view of the mother's intentions in terms of employment and study when she returns to Queensland at the end of the trial. I proceed on the basis she is the undisputed resident parent. There is no suggestion the boys are not thriving in her care. She spoke of being in Queensland for two years and she may return to Melbourne at the end of that time. No questions were asked about her personal life in Queensland and, in those circumstances, I say nothing about them.
(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;
The court must take account of the practical difficulty and expense of the children spending time and communicating with a parent. The mother is prepared to fund the children's travel to Melbourne and to pay a commercial supervisor. She is still prepared to fund the travel if the court orders unsupervised contact, although that is not an order she seeks.
(j)any family violence involving the child or a member of the child’s family;
Given the ambit of this dispute, I will say less about this than I might otherwise. The mother obtained an intervention order on 7 March, 2000 in which she was the aggrieved family member; on 31 August 2001 in which she and her daughter were the aggrieved family members; and on 20 April 2004 in which she and her daughter and the boys were the aggrieved family members. An order on foot, which lasts until 3 May 2009, names her, her daughter and the two boys as aggrieved family members. The father was charged with breaching an intervention order in 2005. He pleaded guilty. He was sentenced to 75 hours of community work and 10 hours of counselling, which he undertook. He has told me he did the work and the counselling.
There is no evidence on which I could rely about the nature of the breach to which he pleased guilty. He referred to “harassing”; it may well have been a phone call, or calls. The mother herself did not say physical violence was involved. In saying that, I do not intend to minimise the significance of the breach.
I have earlier referred to the intervention orders that the father’s father and sister have obtained against him. The father has told me of his ambivalent relationship with his now quite elderly father. It appears that the order in respect of his sister expires in July this year, and the order in respect of his father expires in April this year.
In relation to his own interactions with his father, the father said he was “not very violent” to his father. There was a lot of yelling. He might have scratched his father, to make him “know how it feels”. They had both had a few drinks. The father agreed that he took the watch his father was wearing, which he had given him as a present, and smashed it against a wall. He pulled out a phone to stop his father calling the police. This was in 2005 and the dispute, he said, arose from a financial disagreement about which he is still, it is clear, very unhappy. His evidence was that his father harasses him; has kicked, punched and pushed him. On occasions, the police ring him and say that his father is at the station and his father wants him to leave his house. Once, in these circumstances, police drove him to a friend's house.
The father’s volatility is demonstrated by the incident in the courtroom during the adjournment, to which I have referred. Again, those difficulties may result from the problems described in the neuropsychological report. Again, it is not intention, but actions, that count. It is particularly important that boys do not have modelled violent responses — verbal or physical — as the way to deal with disputes. Such behaviour has the capacity to impact on children in their adult relationships and in their peer relationships now. It can have significant, adverse impacts on them, and on their psychological development.
I doubt that the father would want his boys to behave as he described. It is likely he wants them to behave well, and in a respectful way, to other children, to men and to women. But children learn what they live and they should not be exposed to aggressive behaviour or language, if they can be protected from it.
(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 proceedings have been on foot for nearly four years. That itself must have imposed considerable pressure on both parties and some pressure on the children, because they, of course, are affected by their parents' stress. A parent is never cut out from making an application, if new facts and circumstances arise. In my view, final orders now are likely to foster the best interests of the children.
Supervision of the father's time with the children is supported by Ms C, Dr K and the ABIAS report, for protective reasons, and for behavioural reasons. It is also, in my view, important to consider the mother's need for reassurance about the boys' safety. Ms C observed in paragraphs 14 and 15 of her report:
… (the) main concern is [the father’s] lack of understanding of his role as a parent to his boys, which is to be a role model for them, to keep them safe and set an example for them, and to take responsibility for his behaviour without blaming others. He tends to allow them to misbehave when they are with him, and then to suddenly get angry with them when their behaviour gets too extreme, for which he then blames [the mother] for encouraging them to behave in this way when they are with him.
The issue of his neurological functions and limited intellectual ability is also a difficulty, and probably limits his ability to learn from, or participate, in programmes such as parenting or anger management programmes.
A professional supervisor, while not perfect, enables a parent and children to enjoy better time together than can occur at a contact centre. The father needs to spend more than two hours at a time with the boys and a contact centre is a very contained environment, particularly as the children get older. A professional supervisor can be present as a friend could be present; indeed, if the father wants to have a friend attend, he can do so, or family members. A competent professional supervisor can give focus and provide distance. As Ms C said, a supervisor can be an effective and, perhaps, optimal way to target and improve the father's parenting skills.
The father was candid with the court. He is not prepared to go to counselling. He made that clear. I act on the basis that he knew what he was saying, and knew the ramifications of what he said. Similarly, in relation to supervision, I act on the basis that he understood the options that were being put to him. He made very clear his preference and his desire for unsupervised contact. But he also made it clear that if the only way he could see his boys is to accept supervision, he would see them on that condition. I act on the basis that he means what he said.
In my judgment, the decision of the mother to move back from seeking an order conditional on the father undertaking counselling was sensible and child focused. The father has had a deal of counselling in the past. He has done the LifeWorks Men's Behaviour Change program. He has undertaken one or more parenting courses and counselling was a part of his community based order.
An option put forward by Ms C struck me as profoundly sensible. She made inquiries about the father’s capacity to be assessed to take part in the Key Steps to Parenting Post-Separation program at Relationships Australia. He could not start a course until April this year, but he could be assessed before then. She talked to staff at Relationships Australia about the potential for him to undertake three group sessions, or some private sessions. She thought that participation in such a program would be very useful for the father, particularly running in tandem with supervised contact. She said the supervisor could liaise with Relationships Australia staff, and could discuss ways to deal, for example, with an incident which had arisen in the course of a contact visit.
It is not unusual for a person in the father's position to feel that they are always being sent off to somebody, to be told what to do. I understand his reluctance to participate in such a program, his desire to do what he wants to do with his sons, not be told what to do with his sons. Again, his response is consistent with the evidence in the neuropsychological report. There is little point in the court ordering the father to undertake any form of professional intervention, be it psychiatric, psychological, parenting, or anger management, if he is not prepared to accept that he can learn from it. At the end of these proceedings the father might like to consider whether, at some time in the future, it would be useful for him to talk to an expert about the time he spends with his sons. He might move towards voluntary counselling or other assistance in the future.
Presumption of equal shared parental responsibility
The presumption of equal shared parental responsibility applies unless the court determines that it is displaced by, for example, family violence, or is rebutted as being contrary to the best interests of the child.
In all the circumstances of this case, I am comfortable in finding the presumption is rebutted. I do not think anything will be served by saying anything further than that which I have already said in relation to family violence. The presumption is rebutted for the pragmatic reasons advanced by counsel. The father sensibly acknowledged that it is the mother who must make significant decisions about the boys; he accepts that she has to be free to make good decisions for them. While he can be very critical of her, he was not generally critical of her parenting, and the boys' presentation satisfies me that she is doing a good job.
The difficulties the parties have in communicating; the father's volatility; the existence of the family violence order; the evidence I have canvassed of problems the father has with members of his own family, and with the mother; all satisfy me that the best interests of the children will be served by an order that the mother have sole parental responsibility. Indeed, that order could be made by consent, because the father has told the court through his counsel, that he consents to it.
That leaves only the question of whether the father's time should be, as sought by him, unsupervised, or as sought by the mother and the independent children's lawyer, supervised. For the reasons set out in the submissions of the independent children's lawyer, and supported by the other submissions made by the mother, I am satisfied that despite the father's preference otherwise, his time with the children needs to be supervised. I am satisfied their best interest demand such an order. There is an unacceptable risk of harm – physical and psychological – if his time with them is not supervised.
I will discharge all previous parenting orders and order that the mother have sole responsibility for the children. They live with her, and they will remain living in Queensland, at this time. Orders will provide for the children to spend time with the father on a supervised basis, for a minimum period of six hours, on six occasions per year, at times to be agreed and in default, the times spelled out in the minute of the ICL, save that I propose they have contact with their father on his birthday, rather than on a date near his birthday.
Orders in relation to telephone communication will provide for calls on each Sunday, to be made between 6 and 6.30 pm, but also on each of the children's birthdays - if they are not with him on their birthdays – and on his birthday, if not otherwise with him.
Orders will also provide for communication by way of letters, cards and gifts. I appreciate writing is not a medium that the father would choose. He has had an opportunity to communicate in that way in the past and it has not happened. But small gifts - I am not talking about extravagant presents, but small gifts - can maintain a connection and share common interests between a father and a child.
I propose to enjoin both of the parents from denigrating the other in the presence or hearing of the children and from discussing these proceedings and any allegations raised in these proceedings in the presence or hearing of the children. That order will apply to each of the parents.
The supervisor will one of a named set of potential supervisors or such other commercial or professional supervisor as is agreed. Things change. In the last year, Ms Angelicou, who previously worked for Aiding and Caring Sitters Agency, has started operating on her own. There are already a range of services that can be utilised and they are likely to increase. The person supervising will have access to my reasons for judgment, the orders, Ms C’s report and the ABIAS report.
I propose to enjoin the father from using illicit drugs or drinking alcohol in the 24 hour period prior to contact, and during contact.
I will require the mother to keep the father advised of any serious illness or injury affecting the children and to forward to the father copies of all school photographs and school reports of the children within 28 days of receipt. She will be at liberty to delete anything in those photographs or documents which would tend to identify the children's residential address. That can protect the father, as well as the mother, against any allegations that might arise.
Each of the parents will be required to keep the other advised of a postal address; that does not have to be their home address, in either case. They must also keep the other advised of a number at which they can be contacted. Each must ensure that when the children are with him or her, they have the phone number of the other parent.
Orders will provide that a copy of these orders may be provided to the principal of a school attended by the children, so the principal is aware of the orders, and the limitations of the orders.
I certify that the preceding
106 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2008.
…………………………………………
Associate.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Remedies
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Procedural Fairness
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