Plume and Latham
[2010] FMCAfam 190
•8 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PLUME & LATHAM | [2010] FMCAfam 190 |
| FAMILY LAW – Parenting – discrete issue only – whether the child should or can be left alone with the mother’s new partner. |
| Family Law Act 1975, s.60CC |
| Applicant: | MR PLUME |
| Respondent: | MS LATHAM |
| File Number: | WOC 459 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 23 & 24 November 2009 |
| Date of Last Submission: | 24 November 2009 |
| Delivered at: | Wollongong |
| Delivered on: | 8 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Steward |
| Solicitors for the Applicant: | R & M Legal Solicitors & Attorneys |
| Solicitor-Advocate for the Respondent: | Ms Lukes |
| Solicitors for the Respondent: | Lukes Law |
| Counsel for the Independent Children’s Lawyer: | Ms Christie |
| Solicitors for the Independent Children’s Lawyer: | Rebecca Bailey & Associates |
ORDERS
Until the Child [X] born [in] 1998 attains the age of 14 years, the mother is not to leave him alone with Mr W for periods beyond a long weekend consisting of three nights and four days.
The mother is to abide by any request by the Child not to leave him alone with Mr W.
IT IS NOTED that publication of this judgment under the pseudonym Plume & Latham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 459 of 2007
| MR PLUME |
Applicant
And
| MS LATHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X] who is 12 years old. The applicant is his father, and the respondent his mother. By the time the matter came before me for final hearing on 23 November 2009 there was only one discrete issue that needed to be decided. That issue was whether, according to the father, [X] should never be left alone with his mother’s de facto,
Mr W. The mother’s proposal in this regard was that she would not allow Mr W to physically discipline [X].
Whilst this is a discrete issue, it is the manifestation of litigation that has been running before me since 2007 which involved serious issues about the capacity of both parents to provide for the needs of this child. There is an undisguised level of ill-feeling which is evident between the mother and Mr W on the one hand, and the father and members of his family on the other hand. [X] is metaphorically caught in the cross-fire of this intense conflict. In short, the father asserts that there are safety issues that justify making an order that [X] not be left alone with Mr W. The mother says there are no such safety issues.
Background
On 16 April 2009 I delivered written reasons for judgment in an interim parenting application that arose during the course of this matter. These reasons are published as [2009] FMCAfam 348. The background of this case is adequately set out in those reasons, so I will not repeat those matters here. The issue of protecting [X] whilst in the mother’s care was expressly dealt with at paragraphs 30-32 of these reasons. It should be noted that, unlike many interim applications before me, evidence was actually given by the father, the paternal grandfather, the mother and Mr W.
I reproduced those paragraphs below:-
30. At the interim hearing the major issues in this regard was the father’s concerns about the mother’s partner. In short the father is concerned about [X]’s safety when he is around. In his affidavit of 23 April 2008 at paragraph 13 he provides three examples of instances which, the father alleges, involved the mother’s partner physically abusing [X]. He confirmed this in his oral evidence in June 2008. In his affidavit of 1 April 2009 he refers to a further incident in December 2008 in which the father and the mother’s partner came to blows outside the latter’s home, in the presence of [X].
31. Both the mother and her partner gave evidence about this issue. Having heard the evidence I do not accept that the mother’s partner assaulted [X]. I prefer the evidence of both the mother and her partner in this regard. The father’s evidence about his drug taking casts a long shadow of doubt over the rest of his evidence. That shadow becomes ominously dark when one considers the enormous enmity that he holds towards his cousin, the mother’s partner. Overlaid on all of this is the evidence from the father himself and that indicated he has inappropriately involved [X] in these proceedings by discussing the same with him. The most likely scenario is that the father’s ill-will towards the mother’s partner has been projected onto [X] who, if he has said anything at all, has said things to his father that he thinks his father wants to hear. The evidence tends to indicate that there is in fact very little objective difficulty in the relationship between [X] and his mother’s partner. If there is a problem, it is entirely with the father himself. These findings are consistent with the submissions the Independent Children’s Lawyer makes. Out of abundant caution, however, pending final order I will not vary the order that states that [X] should not be disciplined by the mother’s partner.
32. At the interim hearing no great emphasis was placed on the mother’s own drug issues. It is certainly not an issue the court has overlooked. It will assume much greater importance at final hearing. The mother is attempting to give up her own cannabis consumption. That is commendable, and is very child-focussed. Unlike the father she has complied with orders for urinalysis.
In some respects the issue before me in this final hearing was a re-play of the issues before me at the interim hearing. In the circumstances of this case, however, I accept that it was perfectly legitimate for the parties, particularly the father, to re-agitate this issue before me. For one thing, I had much more extensive evidence, and more time to deal with the matter. However, as it turns out, my conclusions are precisely the same as they were on 16 April 2009. There are no reasons to be concerned about the safety of [X] whilst in the care of Mr W, for the reasons that I set out below.
Despite the intense conflict between these parents it is very encouraging indeed that they were able to enter into consent orders on 23 November 2009 which dealt with all remaining issues between them. Thus, the parents agreed that they would have equal shared parental responsibility, that [X] would in effect live with his father for most of the time, but live with his mother each alternate weekend from after school on Friday to the commencements of school on Monday, on two afternoons each week, on special occasions, and for half the school holidays. The parents agreed that they would refrain from denigrating each other. The parents agreed that the mother would do all things necessary to ensure that Mr W does not physically discipline the child.
In addition the orders note the father’s undertakings about his attendance at a methadone program and, on completion of the same, his willingness to do all acts and things following medical advice to reduce and cease his consumption of marijuana. There were similar undertakings about the mother’s consumption of marijuana and alcohol consumption. Whilst the parents have progressed a long way since the commencement of these proceedings the issue of the exposure of [X] to Mr W remained a significant point of difference between them.
It should be noted that the father’s case was presented on the basis that this was a safety issue, ie, that there was a need to protect [X] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2)(b)). Subsidiary to that there was also an argument that [X] had expressed a view about this issue, which needed to be taken into account for the purposes of section 60CC(3)(a). It was not otherwise suggested, however, that any of the other matters referred to in section 60CC were relevant in the present context.
The evidence
The evidence on this discrete issue consisted of affidavits filed by the mother, Mr W, the father, and the paternal grandfather. Each of these witnesses were cross-examined. In addition I had a report from
Dr Anne Hollingworth, a Regulation 7 Family Consultant.
The father’s case
In his closing submissions, counsel for the father submitted that the mother should be restrained from leaving [X] alone in the presence of Mr W for three reasons. Firstly, there was still sufficient evidence from which the court could find, or at least infer, that Mr W had inappropriately physically disciplined [X], and possibly even assaulted him. In this regard, the father was relying on the evidence contained at paragraph 13 of his affidavit on 23 April 2008 in which he provides three examples of instances which, the father alleges, involves Mr W physically abusing [X]. It should be noted that he confirmed this in his oral evidence in June 2008, in the interim proceedings before me.
The second aspect of the father’s case is that [X] has expressed reluctance about spending time with Mr W to his father, and to the paternal grandfather, and this should be afforded significant weight. The third and final aspect of the father’s case is that even if it turns out that the allegations are unfounded, the father genuinely believes there to be concerns about the safety of [X] in the presence of Mr W and accordingly the court should act to address his concerns given that he is the person primarily responsible for the care of [X].
The evidence of Dr Hollingworth
The report of Dr Hollingworth is in the usual comprehensive form for this expert. The paragraphs that are relevant to the issue before the court are as follows:-
22. Mr Plume agreed that since April he and Ms Latham had been able to cooperate better. He agreed that [X] enjoys his time with his mother and is not afraid of Mr W. Nonetheless Mr Plume maintains his objection to Mr W’s presence during visits. He insists that Mr W smokes ice as well as pot, and is concerned that this makes him a hazard. He also alleges that Mr W is not permitted to see his own son, He has heard through the family that this may be related to allegations of sexual abuse raised by Mr W’s ex-partner. He acknowledged that such an allegation may be malicious but nonetheless holds concerns.
23. Mr Plume expressed frustration that Mr W’s drug use and (hypothetical) child protection notifications had not come under scrutiny in this court process. He contends that Ms Latham underestimates the risk, claiming Ms Latham had previously taken refuge with him from Mr W’s domestic violence but has not disclosed any DV since he raised the matter in previous proceedings – perhaps because she feared further disclosure could jeopardise contact with her son. He said that he hates
Mr W “with a passion” but that does not mean his suspicions of Mr W’ abusive potential are unfounded. He fears his well-known hostile attitude to Mr W may have led others to dismiss what he considers valid apprehensions. Although not happy with the situation, Mr Plume is better able to tolerate his son’s visits to
Ms Latham now that [X] is older and best able to initiate safety plans.
…
39. [X] greeted his mother warmly and sought physical proximity with her on the sofa. From time to time he played with her finger tips. His body language spoke of warm affection towards his mother. They interacted in a friendly, relaxed manner. [X] also seemed to feel safe and comfortable with his father and grandfather, and related warmly to both of them. When I spoke with him alone, with his mother and again with his father and grandfather [X] confirmed that he enjoyed visits to Mum and wanted to live with Dad. He expressed no fear or aversion towards Mr W.
…
49. There are several factors to weigh up in this regard. Firstly, Mr Plume’s PDS profile encourages us to give him the benefit of the doubt with regard to his other self-reports. Equally, his recent compliance with contact orders is also encouraging. On the other hand, if Mr Plume wishes to have his request to exclude Mr W from contact with [X] taken seriously – even to have his objections to Mr W hear in court – it is in his rational self-interest to behave cooperatively until the final hearing. If he feels his views about Mr W are discounted at that time, it is possible he may revert to obstructing contact – either for good reasons, good but misguided reasons or for vengeful reasons. Mr Plume’s PAS responses indicate personal unhappiness, and he still expresses considerable resentment and sorrow about how his relationship with Ms Latham ended.
Dr Hollingworth was also cross-examined about this evidence. Counsel for the Independent Children’s Lawyer carefully probed
Dr Hollingworth’s evidence about the matters referred to in the above paragraphs. Dr Hollingworth confirmed this evidence and also emphasised that in her opinion [X] clearly has the ability to protect himself from any matters of concern to his safety. Counsel for the father cross-examined Dr Hollingworth quite meticulously. She conceded, as she did in her report, that she could not exclude the possibility that there was a risk from Mr W. However, she emphasised that in so far as [X] may have said anything to his father, or even his grandfather, suggesting that there was a basis for concern, he was likely to be saying things that he knew pleased his father and grandfather.
Moreover she emphasised that there were no stated concerns, even from the father, about the mother’s ability to protect [X] from any form of harm and in these circumstances it was somewhat incongruous for the father to assert that there was some form of risk associated with
Mr W. Dr Hollingworth categorically rejected that the father’s subjective concerns about Mr W could found the basis for a restriction. The basis of this rejection by Dr Hollingworth was that this would maintain an unnecessary intrusion by the father in the mother’s time with [X], and hence be another flash point for conflict between them. Dr Hollingworth had concerns about whether the father had adequately detached in his relationship from the mother and even suggested that his insistence on this restriction, in circumstances where there was no objective basis for it, represented an attempt to control the mother, well after the relationship had ended.
At the conclusion of her cross-examination, the evidence of
Dr Hollingworth remained entirely intact. She was a credible and formidable witness. I accept her evidence.
The evidence of the lay witnesses
The father was cross-examined on his affidavits. He was an unimpressive witness. I found him to be evasive and unresponsive at times during cross-examination. His hatred for Mr W was palpable. The father gave the impression of being a man who was still deeply hurt by the end of his relationship with the mother, many years after the fact. The lack of any objective basis for his subjective concerns about the safety of [X] whilst in the care of Mr W is clearly apparent. He was always prepared to adopt an interpretation of events which favoured his view of the safety concerns, even when there could be no reasonable basis for it. What was particularly disconcerting about the father’s evidence is that it is clear that his own relationship with the mother may have deteriorated in the period leading up to the hearing, or alternatively the improvement in his relationship with the mother that he reported to Dr Hollingworth was not genuine. The father seemed completely unable to understand how his conflict with the mother, and his undisguised hatred for Mr W, might have an adverse impact on [X].
The paternal grandfather gave evidence. He was an impressive witness save for leaving me with the impression that he either knew more about the precise nature and extent of the father’s past and present drug addiction issues but was not letting on, or alternatively he was minimising the same. Nonetheless he has provided rock solid stability for both the father and [X] during very difficult times. He clearly understands and has observed the nature of the conflict between the mother, father and Mr W but agreed in cross-examination by the Independent Children’s Lawyer that there was probably no objective risk for [X] in Mr W’s care.
The mother gave evidence. Given the limited issues for determination in this case her evidence on the relevant topic was not challenged successfully in cross-examination. She did concede in cross-examination, quite appropriately I thought, that if [X] expressed the wish not to spend time with Mr W, she would abide by the same. In all other respects her evidence indicates that there are no safety issues associated with [X] spending time with Mr W.
Finally Mr W gave evidence. I found him to be quite impressive. It is clear from his evidence that there is an emerging relationship between [X] and himself, but it is an appropriate one as he happens to be his mother’s partner. There is absolutely nothing to indicate that the father’s position and role as father to [X] is in any way challenged by Mr W. Moreover, even after his evidence was tested about the risk issues (indeed as it has been now twice) I conclude that there are no safety or risk issues associated with [X] spending time with him.
Conclusion about the evidence
I conclude that there is no evidence which would justify any further restriction on the interaction between Mr W and [X]. In regards to these issues I accept the evidence of Mr W, and the mother, over that of the father. Insofar as [X] may have said things to both his father, and his grandfather, I do not accept that they have an objective basis. Indeed, all of the further evidence I have heard leads me to confirm the view I have formed at paragraph 31 in my reasons for judgment delivered 16 April 2009, ie, that the most likely scenario is that the father’s ill will towards the mother’s partner has been projected on to [X] who, if he had said anything at all, has said things to his father that he thinks his father wants to hear. The same extends to the grandfather. I find that [X] has not expressed a view that would suggest further restrictions need to be placed on his time with Mr W, being a view in respect of which I would place any significant weight.
As irrational, and possibly even ill-motivated, as the father’s concerns may be about Mr W, nonetheless I do need to take his subjective concerns into account. To grant the orders that he seeks would be to empower him to continue to seek to control the mother’s life, or a significant aspect of it, years after the separation between the parents. I accept Dr Hollingworth’s evidence that this would not be in the best interests of [X]. Nonetheless some safeguards are warranted to take into account his subjective concerns. The mother indicated in her evidence that if [X] expressed a view that he did not want to spend time with Mr W alone, she would abide by this. I will make an order to that effect. Moreover enclosing submissions counsel for the Independent Children’s Lawyer suggested that if the court was mindful of making provision for some restriction, it might be appropriate to restrict extended periods of time between [X] and Mr W. I see no harm in this, provided that such restriction does not extend beyond [X] attaining the age of 14 years at which time I have no doubt his views will prevail, one way or another. This will, I trust, go some way towards addressing the father’s concerns, as subjective as I have found them to be.
No other restriction is warranted on the evidence before me.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 8 March 2010
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