Pillai and Pillai (No.3)
[2016] FCCA 128
•28 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PILLAI & PILLAI (No.3) | [2016] FCCA 128 |
| Catchwords: FAMILY LAW – Children – parenting Orders – parental responsibility – equal shared parental responsibility – sole parental responsibility – best interests of the children – need to protect the children from psychological harm – whether father’s time with the children should be supervised |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 43, 60B, 60CA, 60CC, 61DA, 65DAA, 68L |
| Cases cited: Pillai & Pillai [2014] FCCA 720 Pillai & Pillai (No.2) [2014] FCCA 1307 |
| Applicant: | MS PILLAI |
| Respondent: | MR PILLAI |
| File Number: | SYC 3788 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 16-17 December 2015 |
| Date of Last Submission: | 17 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 28 January 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lloyd SC |
| Solicitors for the Applicant: | Newnhams Solicitors |
| Counsel for the Respondent: | Ms Cantrall/Mr Othen |
| Solicitors for the Respondent: | J. Francis Lawyers Pty Ltd |
| Counsel for the Independent Children's Lawyer: | Mr Morris |
Independent Children's Lawyer: | Kathryn Renshall |
ORDERS
All previous parenting Orders, including the Order made on 26 July 2010 placing the names of the children X born (omitted) 2006 and Y born (omitted) 2009 on the Family Law Watch List, are discharged.
The Applicant mother is to have sole parental responsibility for the children X and Y.
The children X and Y are to live with the mother.
The children X and Y are to spend time with the Respondent father for a period of one (1) hour on each occasion at times to be agreed between the mother and the father on the following days:
(a)On each of the children’s birthdays;
(b)On Father’s Day;
(c)On the father’s birthday; and
(d)On such other days if any as the parties shall agree.
The children’s time with the father in accordance with the above Order is to be supervised by Axia Solutions or Phoenix Rising or such other person or persons as the parties shall agree.
The father is to be responsible for the cost of the supervision in accordance with the above Order.
Any supervising agency supervising the children’s time with the father is hereby authorised to release all reports and other notes and documents relating to the father’s supervised time with the children to the mother upon her request and the father is to do all acts and things necessary to facilitate compliance with this request.
The father is permitted to forward letters, cards and presents to the children by post and the mother is to provide the father with a postal address at which he can forward the gifts to the children at all times.
The mother is permitted to view all letters, cards and gifts prior to their delivery to the children and may refrain from delivering to the children any correspondence or item which she considers to be inappropriate.
The father is hereby restrained from communicating with the children in any language other than English.
Each of them the mother MS PILLAI born (omitted) 1981 and the father MR PILLAI born (omitted) 1970 and their servants or agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children X (a male) born (omitted) 2006 and Y (a female) born (omitted) 2009 from the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the above Order by placing the names of the said children X and Y on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said children’s names on the Family Law Watch List for a period of three (3) years from the date of this Order.
Upon the expiration of the period referred to in the immediately preceding Order and subject to any further order of a court of competent jurisdiction the Australian Federal Police will cause the removal of the children’s names from the Family Law Watch List.
The mother is to ensure that the father is provided with copies of all school and medical reports in relation to the children to an email address nominated by the father.
The mother is to forward to the father either by hard copy or in soft copy digital format sent by email to an email address nominated by the father updated photographs of the children each year on the following occasions:
(a)Annual school photographs;
(b)The children’s birthdays; and
(c)Christmas Day.
The father and mother are hereby restrained from making any critical or derogatory comments to or about the other party or members of the other party’s family in the presence or hearing of either of the children or from permitting any third person to do so.
The parties are restrained from discussing these proceedings with either of the children except as advised by a school counsellor, treating general practitioner or treating psychologist from time to time.
The Independent Children’s Lawyer is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Pillai & Pillai (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3788 of 2010
| MS PILLAI |
Applicant
AND
| MR PILLAI |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the mother for final parenting orders in respect of the parties’ two children, X, aged 9 years, and Y, aged 6 years. In essence, she seeks orders that:
a)She is to have sole parental responsibility for the children;
b)The children are to live with her;
c)The children are to spend time with their father:
i)Under supervision;
ii)in accordance with their wishes; and
iii)by arrangement with the mother;
d)the parties will be restrained by injunction from removing the children from Australia; and
e)the children’s names will remain on the Family Law Watchlist.
The father seeks different orders, essentially that:
a)The parties are to have equal shared parental responsibility for the children;
b)The children should live with the mother; and
c)The children should spend time with him:
i)initially under supervision for six months; then
ii)for a further six months, from 10:00 am to 2:00 pm each alternate Saturday; and then
iii)from 10:00 am to 4:00 pm each Saturday and from 3:30 pm to 7:30 pm each Tuesday.
The Independent Children’s Lawyer proposes that:
a)The mother should have sole parental responsibility for the children;
b)The children should live with the mother; and
c)The children should spend time with the father:
i)Initially for one hour a fortnight under supervision at a contact centre;
ii)After twelve consecutive visits at a contact centre, then once a fortnight under supervision at a contact centre for no more than three hours at a time; and then
iii)After 24 contact centre visits, once a fortnight unsupervised for no more than three hours at a time.
Background
The father was born on (omitted) 1970. He is now 45 years old.
The mother was born on (omitted) 1981. She is 34 years of age, and less than a month short of her 35th birthday.
The parties commenced cohabitation on (omitted) 2001. They were married on (omitted) 2002.
There are two children of the marriage. The parties’ son X was born on (omitted) 2006. The parties’ daughter Y was born on (omitted) 2009.
The parties separated on 30 March 2010 and have lived apart since then. The children remained living with the mother.
The mother commenced proceedings on 17 June 2010, seeking parenting and property orders.
The parties entered into Consent Orders on 26 July 2010 resolving the property issues between them. They also consented to final parenting orders, providing that:
a)The mother and father would have equal shared parental responsibility for the children;
b)The children would live with the mother;
c)The children would spend time with the father in a graduated program, increasing to alternate weekends from 1 February 2015 during the school term and half the school holidays; and
d)The children’s names would be placed on the Family Law Watch List.
The parties were divorced by Order of this Court on 2 August 2011.
On 3 November 2011 the mother filed an Application to discharge the parenting Orders that had been made by consent on 26 July 2010.
On 12 December 2011 the parties entered into interim Consent Orders varying the earlier Orders, placing a number of restrictions on the father’s time with the children. The parties also acknowledged that a Court Expert Report should be prepared by Dr C.
On 12 March 2012 an Order was made under the provisions of s.68L of the Family Law Act 1975 (Cth) that the children’s interests should be independently represented by a lawyer.
Dr C prepared a Report which was released to the parties on 11 December 2012.
On 2 April 2013 the parties entered into further interim Consent Orders.
On 5 August 2013 the mother’s Amended Application was listed for final hearing on 3 and 4 April 2014.
On 2 April 2014 the second Report by Dr C was released.
A hearing took place on 3 and 4 April in which both parties and Dr C gave evidence. On 4 April I made some Orders until further Order, providing that:
a)Earlier parenting Orders were suspended;
b)The mother was to have sole parental responsibility for the children;
c)The children were to live with the mother;
d)The proceedings were adjourned for the purpose of allowing Dr C to peruse the transcript of the hearing and to have the opportunity to either adhere to or vary the recommendations contained in her Report dated 27 March 2014 in response to the evidence of the Respondent father.[1]
[1] Pillai & Pillai [2014] FCCA 720
After further evidence on 11 June 2014 I made these Orders until further Order:
(1) All previous Orders are suspended except Orders (12), (13) and (14) made by consent on 26 July 2010.
(2) The Applicant Mother is to have sole parental responsibility for the children X born (omitted) 2006 and Y born (omitted) 2009.
(3) The children X and Y are to live with the Applicant Mother.
(4) The children X and Y are to spend time with the Respondent Father as follows:
(a) On one (1) occasion each week for a minimum of two (2) hours and a maximum of four (4) hours;
(b) The children’s time with the Father is to be supervised by a person agreed between the parties and failing agreement at a children’s contact centre reasonably close to the residence of the Mother; and
(c) In the event that a suitable contact centre is unavailable, the children’s time with the Father is to be suspended until a vacancy arises.
(5) In the event that there is no agreement about the contact supervisor the parties must within seven (7) days fulfil all the intake requirements at the children’s contact centre referred to in the immediately preceding Order and do all things necessary to facilitate the children spending time with the Father on days and at times nominated by the contact centre.
(6) Each party is to continue to participate in counselling with Unifam and comply with all reasonable recommendations and accept all referrals made by that service.
(7) The parties are to do all things necessary to facilitate the children attending upon counsellors at Unifam as directed by that service.
(8) The parties must share equally the cost of supervision of the Father’s time with the children.
(9) The Father must comply with any direction of the Mother in relation to the provision of medical care and dietary requirements for the children at any time that they spend with him in accordance with these Orders.[2]
[2] Pillai & Pillai (No.2) [2014] FCCA 1307
The father commenced spending supervised time with the children at a contact centre, the (omitted) Relationships Centre, on 2 August 2014. The time was suspended at the father’s request between 20 September and 18 October 2014 and resumed on 8 November of that year.
On 10 April 2015, after the father had had a total of 13 supervised visits with the children, the contact centre suspended his time due to what was said to be a breach of the centre rules.
The visits recommenced on 22 August 2015, but on the next occasion, 5 September, the contact centre discontinued the father’s time with the children completely, due to a further alleged breach of the contact centre rules.
On 14 December 2015 Dr C’s updated Expert Report was released to the parties.
The final hearing took place on 16 and 17 December 2015. Both parents and Dr C gave oral evidence.
Orders Sought
The mother, in her Second Further Amended Initiating Application filed on 19 October 2015, now seeks these Orders:
1. That all previous parenting orders are discharged.
2. The Applicant Mother is to have sole parental responsibility for the children X born (omitted) 2006 and Y born (omitted) 2009.
3. The children are to live with the Applicant Mother
Father’s Time and Contact with the Children
4. The children are to spend time with the Respondent Father when he is in Australia pursuant to their wishes and by agreement with the Applicant Mother.
5. The children’s time with the Respondent Father is to be supervised by a person agreed between the parties and failing agreement, at a children’s contact centre reasonably close to the residence of the Applicant Mother the cost of which will be borne by the Respondent Father.
6. Any contact centre that supervises the Respondent Father’s time with the children is hereby authorised to release all reports and other notes and documents relating to the Respondent Father’s supervised contact with the children to the Applicant Mother upon her request and the Respondent Father is to do all things and acts necessary to facilitate the contact centre’s compliance with this request.
7. (deleted)
8. The Respondent Father shall be permitted to forward letters, cards and presents to the children by post and the Applicant Mother shall provide the Respondent Father with a postal address at which he can forward gifts to the children at all times. The Applicant Mother shall be permitted to view the cards and gifts prior to delivery to the children and the Applicant Mother is permitted to refrain from delivering to the children any correspondence or item which she deems inappropriate.
9. The Respondent Father is hereby restrained from communicating with the children in any language other than English.
Family Law Watch List
10. Each of the mother Ms Pillai born (omitted) 1981 and the father Mr Pillai born (omitted) 1970 and their servants or agents or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children X born (omitted) 2006 and Y born (omitted) 2009 from the Commonwealth of Australia.
11. It is requested that the Australian Federal Police give effect to the preceding Order by placing the name of the children X and Y on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s[3] name on the Family Law Watch List until further Order of the Court.
Other Parenting Orders
12. The Applicant Mother shall ensure that the Respondent Father is provided with copies of all school and medical reports in relation to the children to an email address nominated by the father.
13. The Applicant Mother shall forward to the Respondent Father, either by hard copy or in soft copy digital format sent by email to an email address nominated by the Respondent Father, updated photos of the children each year on the following occasions:
(a) Annual school photos;
[3] sic
(b) Children’s birthdays; and
(c) Christmas Day.
14. That the Applicant Mother and Respondent Father are hereby restrained from making or allowing to be made derogatory comments about each of their families to or in the presence of either X or Y.
15. The parties are hereby restrained from discussing these proceedings with the children except as advised or directed by the Independent Children’s Lawyer or the children’s school counsellor, treating general practitioner or treating psychologist from time to time.
16. 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The father seeks these orders, as set out in his Counsel’s Case Outline Document:
1. That the parents have equal shared parental responsibility for the children X born (omitted) 2006 and Y born (omitted) 2009.
2. The children live with the mother.
3. The children spend time with the father as follows:
a. For a period of 6 months supervised by a professional contact servicer nominated by the father, with the father to meet the cost of such a service.
b. At the expiration of order 3(a), provided that there has been no cessation of the father’s supervised time, for a period of 6 months each alternate Saturday from 10am to 2pm.
c. Thereafter:
i. each Saturday from 10am to 4pm
ii. each Tuesday from 3.30pm to 7.30pm
4. The father is to ensure that the children attend their enrolled extracurricular activities whilst the children are in his care.
5. Each party be restrained from denigrating the other parent or any member of the other parent’s family in the presence or hearing of the children or allowing anyone else to do so.
6. The mother shall scan and email the father within seven (7) days of receipt copies of the following:
a. each child’s school reports and merit cards;
b. any written material pertaining to each child’s academic and extracurricular activities, including permission notes;
c. any letters or correspondence relating to either of the children’s welfare or discipline;
d. any certificate of achievement;
e. all order forms for school photographs of each child.
7. The mother shall inform the applicant[4] in writing as soon as practical, but in any event within seven (7) days of any specialist medical appointments including with any psychologist, psychiatrist, counsellor or therapist (the “consultant”) in relation to either or both of the children.
8. During any period referred to in these orders, in the event of the children being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable (but in any event within two hours) after the first contact with either the medical practitioner, medical centre or hospital.
9. The mother shall do all acts and things to ensure that the father is provided with all reports by any such consultant.
10. While the children are in his care the father shall ensure that the mother is kept informed of:
a. any medical problems or illnesses suffered by the children while in the mother’s care;
b. any medication that has been prescribed for the children;
c. any social, school, cultural or religious functions which the child[5] is to attend;
d. current contact telephone number(s), a current email address, the residential address of the mother and particulars of the others who may reside with the child and will advise the other party of any changes to these details within 48 hours of such change occurring;
e. any other matter relevant to the child’s welfare.
[4] sic
[5] sic
11. While the children are in her care the mother shall ensure that the father is kept informed of:
a. any medical problems or illness suffered by the children while in the mother’s care;
b. any medication that has been prescribed for the children;
c. any social, school, cultural or religious functions which the child is to attend;
d. current contact telephone number(s), a current email address, the residential address of the mother and particulars of the others who may reside with the child and will advise the other party of any changes to those details within 48 hours of such change occurring;
e. any other matter relevant to the child’s welfare.
The Independent Children’s Lawyer chose not to make any recommendation about orders in the children’s best interests until the evidence had been heard. After the hearing, the Independent Children’s Lawyer provided a Minute of Proposed Orders, as follows:
1. The Applicant Mother is to have sole parental responsibility for the children X born (omitted) 2006 and Y born (omitted) 2009.
2. The children X and Y are to live with the Applicant Mother.
3. The children spend time with the father as follows:
a. For one hour, once per fortnight supervised by a contact centre.
b. At the completion of 12 consecutive contact visits at a contact centre, as per Order 3.a of these Orders and without the father’s time being suspended or cancelled by the contact centre, the father shall spend time with the children once per fortnight supervised by a contact supervision service for a period of not greater than 3 hours.
c. At the completion of the father spending time with the children for 24 consecutive contact visits pursuant to order 3.b of these orders, the father is to spend unsupervised time with the children once per fortnight for a period of time not greater than 3 hours.
4. Each party is restrained from denigrating the other parent or any member of the other parties[6] family in the presence or hearing of the children or allowing anyone else to do so.
[6] sic
5. The mother is to provide to the father within 7 days of receipt copies of the following:
a. Each child’s school reports and merit cards.
b. Any certificate of achievement.
c. All order forms for school photographs of each child.
6. The father is to pay for a copy of a contact report from each contact visit referred to in order 3a and 3b within 7 days of each visit.
7. The father is to provide the mother within 7 days of receiving a copy of a contact report a copy of each contact report as referred to within order 6.
8. In relation to order 3a and 3b the father is to pay the service fee for each contact visit.
Notation
9. For the purpose of Order 3.b, it is noted that the Contact Supervision Service is to be an activity based supervision service, such as Phoenix Rising or Axia Solutions.
Evidence
The mother relied on her affidavits of 3 August 2015 and 19 October 2015. She gave oral evidence and was cross-examined by Ms Cantrall of Counsel, for the father, and Mr Morris of Counsel, for the Independent Children’s Lawyer.
The father relied on his affidavit of 13 October 2015. He was cross-examined by Mr Lloyd of Senior Counsel for the mother and by Mr Morris of Counsel.
The Court Expert
The Court Expert, Dr C, prepared three reports, dated 11 December 2012, 2 April 2014 and 12 December 2015.
In her original report, released to the parties on 11 December 2012, Dr C noted that the mother was “strongly child focused” and had been “diligent with respect to the welfare of the children, most particularly with respect to their complex medical needs”.[7] She was “attentive, responsive and loving towards them”.[8] However, whilst the father clearly loved the children:
…he appears to be not so much focused on them and their needs as on efforts to undermine the mother. At interview he was preoccupied with giving an account of her failings and he continually conveyed this, and not very subtly, in the presence of the children. He seems lacking in insight regarding the damage that this may do and regarding his own contributions to the problems.”[9]
[7] Court Expert Report 11.12.2012 page 42
[8] Ibid
[9] Ibid
Dr C went on to note that the mother did not undermine the father but the father “consistently undermines the authority of the mother and seeks to convey to the children a negative view of her parenting”.[10]
[10] Ibid page 45
In her updated Report of 2 April 2014 Dr C noted that the father’s efforts to alienate the children were “somewhat toned down” from the previous occasion they remained apparent and the children were “clearly very disturbed by it”,[11] and there was still a risk of psychological harm to the children. She suggested that:
Perhaps the only way that this risk can be ameliorated is to ensure that Mr Pillai’s contact with the children is supervised, if not in the long term, at least for long enough to provide the children with some respite from the alienating process and to consolidate their relationship with the mother.[12]
[11] Updated Report 2.4.2014 page 21 at c)
[12] Ibid
Dr C went on to recommend that arrangements needed to be made to protect the children from continued exposure to the alienating process. She expressed the view that:
…the children’s time with their father needs to be limited and there needs to be protection provided to the children so that they do not continue to experience alienation.[13]
[13] Ibid pages 26-27 at j)
In her most recent report, released on 14 December 2015, Dr C said of the father:
The reports indicate that the father continues to behave and to make comments in a manner that is undermining or alienating of the children’s relationship with their mother; and this in spite of considerable feedback and some counselling.[14]
[14] Updated Report 14.12.2015 page 9 at g)
The Doctor recommended that “the children’s time with their father needs to be limited and there needs to be protection provided to them so that they do not continue to experience alienation”.[15]
[15] Ibid at 10 j)
In cross-examination by Mr Morris, Dr C said that the children do not appear to be having fun in their time with their father. He is limited in his capacity to have a fun interaction with the children. Whilst it is important for the children to maintain some contact with their father, fortnightly was probably adequate and one hour at a contact centre was probably enough.
Dr C went on to say that the undermining of the mother by the father had not been as marked as before but it was still there. The presence of a supervisor has not been enough to stop the undermining.
Dr C said that there would still be a need for supervision, and suggested an agency like Phoenix Rising.
Disturbingly, it was Dr C’s evidence that she did not think that the father’s personality style was going to change. When asked if supervision of contact should extend for six months, she said that she did not know what would be different after six months. The prospects of altering the father’s character structure were quite limited, although there may be some benefit in his learning about parenting skills.
There had been a continuous undermining of the mother’s care by the father. Also, there was not much by way of communication between the parties. Dr C said she was not sure if the father was sufficiently attuned to the children to know what they would like to do when they spent time with him. The fact that there has not been a lot of contact with their father has been beneficial for the children.
In his cross-examination, Mr Lloyd SC, Dr C said that it was more likely than not that the father’s personality would not change. However, she would have confidence in the mother’s ability to know when it would be a good time for supervision of the father’s time with the children to cease.
Dr C said that the father had very limited insight into his behaviour and how it impacted on the children.
In cross-examination both by Mr Lloyd and Ms Cantrall, Dr C expressed the view that not seeing their father at all could be negative and may affect the children’s relationship with their mother. She would not like to see a situation where the children’s contact with their father ceased completely. Children of mixed race need some connection with their cultural and racial heritage.
In answer to a question from the Bench, Dr C said that the father’s reported cutting of the children’s fingernails almost every time he saw them at the contact centre was “obsessive” and “bizarre”.
The Parents
In her affidavit of 3 August 2015, the mother expressed concern about the father’s at times unpredictable, irrational and inappropriate behaviour. She deposed that the father’s supervised contact sessions at the (omitted) Children's Contact Service was suspended from 10 April to 14 June 2015 due to his breaches of the terms and conditions of the contact service. The child X had been “increasingly settled since June 2014”.[16] Y has been “developing well” but expressed that she missed her father.[17]
[16] Affidavit of Ms Pillai 3.8.2015 at paragraph [51]
[17] Ibid at [58]
In her affidavit of 19 October 2015, the mother provided updating information and deposed that on 8 September 2015, she received an email from the Director of the (omitted) Contact Centre advising that the Centre was discontinuing the contact visits for the children with the father. At a meeting with the Director, Ms H, on 15 September, the mother was told that the father was “fixated on hygiene issues” and directing all his attention to Y, not X.[18] She was also told that the father was continuing to undermine her and alienate her from the children.
[18] Affidavit of Ms Pillai 19.10.2015 at [12]
In the final paragraph of her affidavit the mother deposed:
…I seek that the father’s time with the children be at my discretion. I confirm that I would be happy to engage with the father spending time with the children on a limited basis if he engages in some psychiatric treatment and intervention for a considerable period of time, for example, for 18 months, and he demonstrates an appreciation of the effect his actions have on the children. This time would still need to be supervised service for quite some time before I would be comfortable with the father spending any time alone with the children.[19]
[19] Ibid at [16]
It was the mother’s evidence in cross-examination that she was seeking the power to have the final say in the arrangements for the children’s contact with their father. She was not willing to entertain the idea of the children having contact with their father for a period of 18 months. The children are vulnerable and need time to “get back on track”.
The mother expressed the view that X was missing his father. She had to tell the children they were not going to continue going to the contact centre to see their father. She thought that the children felt comfortable with their (nationality omitted) identity and the fact that they identify as (religion omitted).
The children had not seen their father since 5 September 2015. They had sent him a birthday card and presents on (omitted) and he had sent them a video back.
In his affidavit of 13 October 2015, the father stated that the Director of the Contact Centre had told him on 10 April 2015 that he was not to write notes to the children or do anything that was secretive. He conceded that he cut the children’s nails on three occasions because they were very long and full of dirt. He confirmed that he had not seen the children since 5 September 2015, after which time the Contact Centre had written to him terminating his contact visits with the children.
The father was cross-examined. He said that he would be funding the proposed supervision through Axia Solutions Contact Service. He conceded that the mother had been doing “a great job” with the care of the children. The children appeared to him to be adequately clothed, happy and healthy.
Submissions
Mr Morris of Counsel submitted that the Independent Children’s Lawyer supported ongoing time for the children with their father in a protected way and did not support the mother’s proposal where she would be allowed a veto on time with the father or a discretion as to when the children would see him. He conceded that two hours per fortnight was too much and suggested a period of one hour for some twelve visits, graduated to further supervised time for a period of up to three hours per fortnight.
Mr Othen of Counsel, who appeared for the father on the second day, submitted that it was to the children’s advantage to have a relationship with both their parents, referring to section 60B of the Family Law Act 1975. He said that the father agreed to a program of twelve visits at a contact centre or supervised by Axia Contact Service.
Senior Counsel for the mother referred the Court to the three reports from Dr C, all of which showed a deliberate process of alienation by the father, which he described as “reprehensible and sinister”.
Mr Lloyd submitted that the father’s behaviour amounted to family violence, noting the example of “repeated derogatory taunts” in s.4AB(2)(d). Subsection 43(1) of the Act, at paragraph (ca), requires the Court to have regard to:
the need to ensure protection from family violence;
Subsection 60B(1) at paragraph (b) states that one of the objects of Part VII of the Act is:
protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Similarly, one of the primary considerations in s.60CC(2) is found at paragraph (b):
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Mr Lloyd submitted that the presumption of equal shared parental responsibility in s.61DA of the Act does not apply because of the family violence.
It was submitted that it would be foolish to assume that the father has learnt anything at all about the impact of his behaviour on the children. The father “still doesn’t get it” and “has learnt nothing”. The father “failed miserably” to comply with the earlier orders. He was suspended from the Contact Centre for repeated contraventions of the terms and conditions.
Mr Lloyd submitted that it was not the case that the mother’s application is for suspension of the father’s time with the children, as a reading of paragraph [16] of her affidavit of 19 October 2015 makes clear.
In a short submission in reply, Mr Othen submitted that the father’s behaviour at the contact centre did not come within the definition of family violence in s.4AB(2).
Applications for Parenting Orders
The Family Law Act requires that a court deciding whether to make a parenting order should consider a number of sections contained in Part VII of the Act. They comprise sections 60B, which sets out the objects and principles of Part VII, section 60CA, which prescribes that the best interests of the child must be regarded as the paramount consideration, section 60CC, which sets out how the court determines what is in a child’s best interests, section 61DA and, if applicable, section 65DAA.
As I mentioned, section 60CC sets out the way that a court decides what is in a child’s best interests. The primary considerations are found in subsection 60CC(2) and the additional considerations are found in subsection 60CC(3). The primary considerations require the court to balance the benefit to the child of having a meaningful relationship with both of the child’s parents against the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Subsection 60CC(2A) requires the court to give greater weight to the latter consideration.
Section 61DA deals with the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. If the court does make an order for equal shared parental responsibility, then the court must consider the matters set out in s.65DAA of the Act.
All of the above sections have been considered, so far as they are relevant.
Issues
Counsel for the father and counsel for the Independent Children’s Lawyer have each in their Case Outline Documents set out a list of the issues that they see in this matter. Each list is helpful and each one is reproduced below.
Counsel for the father submitted that the issues appear to be:
a)Are the children at risk of exposure to the father’s attempts to alienate the children from the mother in the supervised care of the father?
b)Are the children at risk of exposure to the father’s attempts to alienate the children from the mother in the unsupervised care of the father?
c)What would the impact on the children be if they had no relationship with their father?
d)Is an order for equal shared parental responsibility in the best interests of the children or should the mother hold sole parental responsibility?
Counsel for the Independent Children’s Lawyer submitted that these are the issues for determination by the Court:
a)Does the presumption of equal shared parental responsibility apply or does it continue to be rebutted?
b)Has the father continued to engage in conduct to encourage the estrangement or alienation of the children from their mother?
c)If so, what, if any, order should be made as a result?
d)In particular, what amount of time between the children and their father will best meet the children’s interest?
e)What conditions if any should be attached to the father’s time with the children?
f)What support or therapeutic intervention, if any, is necessary to support either or both parents in meeting the children’s emotional, physical and psychological needs?
g)Whether the children should remain on the airport watch list?
Conclusions
The short answer to the four issues posed by counsel for the father would appear to be:
a)Yes;
b)Yes;
c)If the children had no relationship with their father at all it would be to their detriment; and
d)Equal shared parental responsibility is not in the children’s best interests and the mother should have sole parental responsibility for the children.
There have been two attempts made to bring about parenting orders in relation to these children, originally on 26 July 2010 and then on 11 June 2014. The orders have not met the children’s needs for a meaningful relationship with both of their parents, due to the failure of the father to refrain from behaviour that undermines the mother’s role as a parent or alienates the children from their mother.
There have been three Court Expert Reports from Dr C over a period of three years, from December 2012 to December 2015, and the same themes emerge from each report:
a)The mother is caring, loving and child focused;
b)The father continually undermines and criticises the mother to the children;
c)The father lacks insight into the deleterious effect of his behaviour on the children;
d)The father appears to be unable to change his behaviour in this regard and Dr C is of the opinion that he will not change his behaviour into the future; and
e)The father’s behaviour is psychologically harmful to the children.
The 2010 Orders provided for the parties to have equal shared parental responsibility for the children. This did not prove to be successful and the Orders I made in June 2014 provided for the mother to have sole parental responsibility for the children. I see no reason to depart from this position. I am not of the view that the father’s continued undermining of the mother’s role amounts to family violence as set in s.4AB(2), but I am nevertheless satisfied that it is not in the best interests of the children for their parents to have equal shared parental responsibility for them due to the father’s intractable behaviour and his lack of insight into the effect of this behaviour on the children.
The father’s behaviour has been erratic and, in the reported instances of his persistence in giving the children a manicure on a number of occasions when he spent time with them at the contact centre, his behaviour has been characterised by Dr C as bizarre and obsessive.
The parents’ communication is poor and, if anything, seems to have deteriorated in the past year or more.
The Independent Children’s Lawyer has submitted that the mother should have sole parental responsibility for the children and I agree with that submission. I will order accordingly.
That leads to the question of the amount of time that the father should spend with the children and the circumstances in which he should do so. Dr C’s concern in her report of 2 April 2014 was that the only way that the risk of psychological harm to the children could be ameliorated was to ensure that the father’s contact with the children was supervised, at least for long enough to provide the children with some respite from the alienating process and to consolidate their relationship with the mother.[20]
[20] Page 21 at (c)
As can be seen, however, the supervision at the contact centre did not achieve this result. The father continued to behave in this way, which led to the contact centre at first suspending the arrangements and then terminating them.
However, the Independent Children’s Lawyer and the father each propose an arrangement whereby the children spend time with the father, albeit for only an hour at a time instead of the previous two hours, under supervision at a contact centre.
I have a serious doubt that this is a viable proposal. The father has worn out his welcome at the contact centre at (omitted) and, from paragraph [45] of the mother’s affidavit of 3 August 2015, it would appear unlikely that (omitted) Contact Service, or any other service, would be willing to offer supervision to someone whose contact had been terminated by another centre.
If there is to be any supervised time with the children in the near future it would need to be under the supervision of an agency such as Axia Solutions or Phoenix Rising.
I am certainly of the view that unsupervised time between the father and the children is not viable at this time and it is unlikely to be a viable proposition for a considerable period of time to come. This view is based on the evidence of Dr C about the father’s continuing lack of insight into his behaviour and her pessimism about the likelihood of any change in his behaviour in the immediate future.
The Independent Children’s Lawyer has proposed that the father’s time with the children, under supervision, should be for twelve consecutive fortnightly visits of one hour at a time. This proposal is clearly based on the opinion expressed by Dr C that one hour was probably enough. I cannot see any evidence that would satisfy me that after twelve such visits of one hour at a time then supervised time could safely be increased to a period of up to three hours, let alone unsupervised .
I am not of the view that there should be no contact between the children and their father. Dr C has expressed the opinion that this would not be to the children’s benefit, and I accept that view. The evidence seems to be that the children at times miss their father but their behaviour seems to have settled since they have not been spending time with him.
This does not mean that the mother’s proposal should be accepted in its entirety, or at all. The best interests of the children are the paramount consideration.
There should be some regular communication between the children and their father, which should include supervised face to face contact. The time should be limited to an hour, as Dr C suggests. I am not persuaded that a fortnightly arrangement is viable at this time and it appears that the time should initially be limited to special days such as birthdays and Father’s Day. Supervision can be by means of an agency such as Axia Solutions or Phoenix Rising, at the father’s expense.
Any additional time will be as agreed between the parents.
There will be a Watch List Order, which need not be in place until the children become adults but should be in place for the next three years.
I will order accordingly.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 28 January 2016
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