PST & CPR
[2006] FMCAfam 36
•21 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PST & CPR | [2006] FMCAfam 36 |
| FAMILY LAW ─ Children ─ contact ─ whether contact should be terminated ─ whether ongoing supervised contact is appropriate ─ relevance of parties’ character and personality ─ father diagnosed by psychiatrist as having a “personality dysfunction” ─ where psychiatrist is of the view that the father is not going to change ─ where father fails or refuses to comply with Court orders ─ father's ongoing denigration of the mother ─ father's attitude to the responsibilities and duties of parenthood ─ whether “unacceptable risk” exists ─ effectiveness of using Court orders to attempt to convert an unacceptable risk to an acceptable risk ─ whether it is preferable to make an order that would be least likely to lead to the institution of further proceedings ─ where mother is “at the end of her tether” emotionally and financially. |
| Family Law Act 1975 |
| A v A (1998) FLC 92-800 B & B (1993) FLC 92-357 Dearman (1908) 7 CLR 549 Fry (2005) FamCA 1159 H & P (2005) FamCA 978 (unreported) K & K (2003) FamCA 1358 M & M (1998) FLC 91-979 Paskandy (1999) 25 FamLR 607 Re Andrew (1996) FLC 92-692 Re J (a child) (FC) [2005] UK HL 40 Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334 Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321 Re W v W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 Russell v Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993) Sanders (1976) FLC 90-078 Schwarz (1979) 5 Fam LR 396 at 399 Sedgley (1995) FLC 92-623 Smith (1994) 18 Fam LR 55 at 64 TF & JF and Children’s Representative (2005) FamCA 394 W v W (abuse Allegations: Unacceptable Risk) (2005) FamCA 892 |
| Applicant: | P S T |
| Respondent: | C p R |
| File Number: | MLM9752 of 2002 |
| Judgment of: | Walters FM |
| Hearing date: | 2 June 2005 |
| Date of Last Submission: | 2 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 21 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robinson of Counsel |
| Solicitors for the Applicant: | McCarthy & Associates |
| Counsel for the Respondent: | Mr Sweeney of Counsel |
| Solicitors for the Respondent: | Reale Lawyers |
| Counsel for the Child Representative : | Mr Hoult of Counsel |
| Solicitors for the Child Representative : | Victoria Legal Aid |
ORDERS
The orders made by this court on 11 September 2003 be discharged.
The child J born 11 April 2002 live with the mother, and she have sole responsibility for the long-term and day-to-day care, welfare and development of the said child.
All extant applications otherwise be dismissed and the matter be removed from the list of cases awaiting trial.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM9752 of 2002
| P S T |
Applicant
And
| C P R |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about a three year old child, J, and whether her father should continue to have contact with her. J's mother argues that contact should be terminated. J's father argues that it should be progressively increased.
A child representative was appointed at a relatively early stage of the proceedings. She argues that it is best for J to continue her relationship with her father, but that all contact should be supervised and made subject to strict conditions. If the father does not comply with those conditions, then it is the child representative’s view that the contact should be terminated.
It is a very serious thing to prevent a parent (in this case, a father) from having contact with his child. There is much law on the subject, but the fact remains that the Court has power to take such a step if it is in the best interests of the child.
It has been said that a court should exercise restraint when expressing views about parties in parenting cases, because the parties will continue to have a relationship with each other – as parents – well after the trial is over. Similarly, the parties will have an ongoing relationship with their children.[1] But the Court must also deal with the realities of the particular case before it. Further, the character and personality of the parents can be very important (and sometimes decisive) in parenting cases.[2]
[1] See Sanders (1976) FLC 90-078
[2] See Schwarz (1979) 5 Fam LR 396 at 399 and Smith (1994) 18 Fam LR 55 at 64
This was a most unusual (and difficult) case. I have formed the view that the mother's character and personality cannot fairly be criticised. She is a sensible, caring and responsible parent. I have no doubt that she can be relied upon to protect and promote J's best interests. But it was the father – his character and personality, his behaviour and attitudes – who dominated the trial process. As Mr Sweeney (counsel for the mother) said during his closing address:
Exhibit A in the case was the father himself.
Mr Sweeney submitted that the father lacks credibility (indeed, he submitted that the father is "downright dishonest"), lacks insight, is vindictive, is volatile, and is controlling and demanding. Mr Sweeney did not stop there. He submitted that the father is "just a hopeless, dysfunctional individual", and Mr Sweeney submitted that he will not change.
Was there evidence to support Mr Sweeney's submissions as I have summarised them above? Regrettably (from the father's point of view), and unfortunately (from J's perspective), there was. Indeed, the father's own barrister (Mr Robinson) explained that the father's "failure to learn his lesson" and his failure to take advantage of "chance after chance" and his "failure to accept the financial responsibility of parenting" are all likely to be due to the fact that he has "a personality dysfunction". Mr Robinson argued that the Court —
… can't reasonably expect someone who has that sort of problem to behave … as normal people (do).
Mr Robinson submitted that the father is "doing the best he can", and that, although he may not be an ideal father, he is J’s father.
In the broadest sense, the termination of a worthwhile relationship between a parent and his child ought, in most cases, to be the course of last resort.[3] At the end of the day, the question in this case is whether that point has been reached. An associated question, it must be said, is whether the father’s relationship with J can fairly be described as “worthwhile”.
[3] See Re W v W (Sex Abuse: Standard of Proof (2004) FLC 93-192, TF v JF and Children's Representative (2005) FamCA 394 and W v W (Abuse Allegations: Unacceptable Risk (2005) FamCA 892
Preliminary Information
The father was born in August 1972, and the mother in January 1975. They are, therefore, 33 and 31 years old respectively. They had a relatively short relationship between 1999 and 2001. They never married.
The parties gave different versions of the history of their relationship, but little turns upon how it commenced and how long it lasted. It seems clear that the relationship ended shortly before or shortly after the mother informed the father – in August 2001 – that she was pregnant. J was born on 11 April 2002.
The father was not present at J's birth. Each party suggests that the other was responsible for the father's lack of knowledge of the confinement and birth.
It appears that the mother advised the father of J's birth approximately two weeks after the event. The father then had several short periods of contact with J at the home of the mother's parents. Those periods of contact ceased in July or August 2002.
On 28 November 2002, the father filed an application for orders relating to contact with J. He also sought an order for parentage testing.
The parentage testing was carried out in January 2003, and in March 2003 it was confirmed that the father is J's biological father.
Since March or April 2003, the father has had regular contact with J pursuant to orders of this Court. Initially the contact was supervised at Gordon Homes; thereafter it took place at the home of the father's parents, with at least one of them required to be in substantial attendance on each occasion.
For reasons that were at the time and remain incomprehensible, the father refused to sign documents to cause him to be registered as J's father on her birth certificate. I shall say more about this subject (“the birth papers”) later in these Reasons.
On 11 September 2003, and following a trial that occupied two days, consent orders were made in this Court. They include orders to the effect that the father sign the birth papers, and that J reside with the mother.
The orders of 11 September 2003[4] also deal with contact arrangements between the father and J, and with various other matters.
[4] See below
The father has only ever had daytime contact with J, and never for a period longer than five hours.
The Mother
The mother is a primary school teacher. She has taught for nine years at the same school. She has been a cub scout leader for nearly as long. J is her only child.
The mother and J live in a comfortable home in an outer suburb of Melbourne. They share the house with the mother's (female) friend and the friend’s four year old daughter.
The adequacy of the mother's accommodation and supervision arrangements for J were not raised as issues in the proceedings.
A witness (Dr Barrie Kenny, consultant psychiatrist) described the mother as “… obviously an intelligent and competent person”.
I would agree with that assessment. I shall comment further on the mother’s evidence under the heading “Observation of Witnesses and Credibility” below.
The Father
The same witness (Dr Barrie Kenny) described the father as having “… a rather exuberant and perhaps somewhat overactive manner about him.” He also said that the father was “… fairly quickly roused to indignation”, and that he “… could not consider (the father) to be a reliable witness.”
Once again, I agree with those observations or assessments.
It is Dr Kenny's view that the father has a "personality dysfunction", together with "marked behavioural problems".
According to the father, he was living in a caravan at the rear of his parents' home (in Highett, a suburb of Melbourne) up to the date of trial (in May and June 2005). During the course of his evidence, he said that he intends to move to different accommodation immediately after the trial. The new accommodation is in Springvale South, but the father was not prepared to disclose the precise address in open court. He wrote it down and handed it to the court. The father said that he will be sharing the new accommodation with a male friend who is aged in his 50’s, and who otherwise lives by himself.
The father's working arrangements are less than clear. He seems to have had many jobs. He has no formal qualifications. In an affidavit sworn in October 2004, he said that he was working for a motorcycle riding school in Moorabbin on a part‑time basis. His aim was to "… pursue motorcycle instruction as a vocation", although at the time of swearing the affidavit he was “…assisting the riding school with repairs to the motorcycles including engine repairs and … participating in class observation to familiarise (himself) with the job.”
At trial – some seven months later – the father said that he had completed a training course and obtained a certificate “… so that (he) could assess and train people to ride motorcycles and issue learner permits and P plates.”
He had not worked on a full-time basis, however, during the period between October 2004 and the trial in late May 2005. He said he had been working as a mechanic at the motorcycle school for "a few hours on a Monday" on an irregular and informal basis. He was unable to give cross-examining counsel an approximate number of Mondays that he works. Overall, the father's evidence in relation to his income and his employment arrangements was less than satisfactory.
J is the father's only child. He conceded, however, that the total amount of child support that he has paid for her in the three years leading up to the trial is $208. During cross-examination, the father conceded that it would cost something in the order of $250 per week for the mother to support J. When asked how much of that amount he thought that he should be paying, he replied: “The amount that I'm currently assessed at (being $260 per year).”
The father's attitude was to the effect that it is appropriate that the mother should meet all the costs of maintaining J over and above the amount that he is presently contributing (being $260 per year) because "… she's looking after J" and "… that's what the Mum wanted".
I shall comment further on the father’s evidence under the heading “Observation of Witnesses and Credibility” below.
Orders Sought
The orders sought by the father are contained in a minute which was handed up to the Court on 31 May 2005. He seeks that the parties retain joint responsibility for J's long-term care, welfare and development and that J continue to reside with the mother. Otherwise, he seeks gradually lengthening periods of contact, culminating in alternate weekends (from 5.30 pm Friday to 5.30 pm Sunday) and half of all school holiday periods. The father also seeks contact on various, specified occasions.
In addition, the father seeks an order that both parties provide each other with 14 days notice in writing of any proposed change to their residential address, and that they keep each other informed as to any changes in their telephone numbers.
The orders sought by the mother are contained in a minute handed up to the Court on 31 May 2005. She seeks that the orders made in this Court on 11 September 2003 be discharged, that J live with her, that she have sole responsibility for J’s long term and day to day care, welfare and development, and that all extant applications otherwise be dismissed.
In other words, the mother seeks orders to the effect that J’s relationship with the father be effectively terminated.
The orders sought by the child representative are contained in a minute handed up by Mr Hoult (counsel for the child representative) on 2 June 2005. They are as follows:
(a)The father have contact with J each alternate Sunday from 11 am to 2 pm until the last Sunday in June 2008, and thereafter all questions of contact be reserved.
(b)The contact referred to in (a) above be supervised by the father's mother at all times, including the collection of the child.
(c)For the purposes of contact changeover, the father collect and return J from the Gordon Care Contact Centre.
(d)Upon the request in writing from the solicitor for the mother, the father do undertake a supervised drug analysis test within 36 hours and forward the results of such test to the mother's solicitor forthwith upon receipt of same, and that there be no more than six requests in each calendar year.
(e)In the event that the father either –
(i)fails to undertake a supervised urine drug analysis within the timeframe referred to above; or
(ii)fails to provide the results of such a test to the mother's solicitors; or
(iii)provides a result that is positive for cannabis or a non-prescribed drug,
then further contact be suspended.
(f) In the event that the father provides a drug/urine analysis that has a low creatinine level, then within 48 hours thereof the father provide a medical report relating to the reasons for such low creatinine level.
(g) The father be restrained by injunction from –
(i)making derogatory, disparaging, insulting or offensive remarks regarding the mother and/or either of the maternal grandparents to J or in J's presence or hearing; and
(ii)harassing or stalking the mother, and loitering or remaining in the vicinity of her home or her parents' home other than for the purpose of collecting J for contact in accordance with these orders.
(h) The mother and father advise each other of any change of address or telephone number within seven days of such a change.
The child representative also proposed that she remain in the matter (subject to funding) until 1 June 2006.
The child representative explains her stance
During his closing address, Mr Hoult (for the child representative) spoke of the father's "personality dysfunction" and emphasised that the father is not going to change. He submitted that the father is clearly an unreliable witness.
Mr Hoult indicated that the child representative has a number of concerns regarding the father. They include his attitude towards Court orders, his unwillingness to take responsibility for mistakes that he may have made in the past or in relation to non-compliance with Court orders, and the father's "incredible" lack of insight in relation to not only his own parenting abilities, but also in relation to J’s welfare.
It was the child representative's submission that the father is not in a position to have unsupervised contact with J. Such an arrangement would not be in J’s best interests for the following reasons:
(a)the attitude of the father towards the mother;
(b)the anger that the father displays towards the mother; and
(c)the attitude of the father towards Court orders.
Mr Hoult also expanded his submissions to deal with the father's unsatisfactory drug test results, his denigration of the mother and his apparent unwillingness to accept financial responsibility for assisting with J’s support. He conceded that it is indeed open to the Court "to make an order for no contact", but explained that the position of the child representative is that, notwithstanding his many shortcomings as a person, a parent and a litigant, J has a relationship with the father, and every attempt should be made to maintain that relationship. The orders sought by the child representative are intended to give the father one last chance to demonstrate that he can act in J’s best interests.
Mr Hoult emphasised that the child representative's view is that if the father does not comply with the orders that she proposes (or if the father provides an unacceptable test result) then contact between father and daughter must be terminated. As Mr Hoult described the situation:
The father must be put on clear notice that this behaviour … cannot be tolerated any longer …
The orders sought by the child representative require the issue of ongoing contact to be revisited after June 2008.
Material Relied Upon
The mother, the father and the child representative all filed case outlines.
The father relies upon the following:
(a)his affidavits sworn 8 August 2003 and 13 October 2004;
(b)his mother's affidavits sworn 11 August 2003 and 13 October 2004; and
(c)affidavit of Wendy Frayne sworn 7 August 2003 (Ms Frayne is the coordinator of the children's contact service at Gordon Care for Children in Mentone).
The mother relies upon:
(a)her affidavits sworn 7 October 2004, 25 November 2004 and 13 May 2005;
(b)her mother's affidavit sworn 7 October 2004; and
(c)her father's affidavit sworn 7 October 2004.
The child representative relies upon:
(a)affidavit of Ms Joy Slattery sworn 15 April 2005 (annexing Ms Slattery's report dated 1 April 2005); and
(b)the two psychiatric reports prepared by Dr Barrie Kenny (consultant psychiatrist), both dated 27 May 2005.
Ms F was not required for cross-examination. Nor was the mother’s father.
Proceedings in September 2003
A defended hearing took place before me in relation to this matter on 10 and 11 September 2003. The father and his mother, and the mother and her parents all gave evidence during the course of the hearing.
A child representative had not then been appointed.
At the conclusion of the hearing in September 2003, and after considerable interaction between counsel for the parties and the bench, I made the following orders by consent:
a)The father do forthwith sign all such documents and do all such acts and things as shall be necessary to cause, permit and/or enable him to be registered as the father on J’s birth certificate.
b)J do reside with the mother.
c)The father do attend and satisfactorily complete the following courses (such courses to be approved or nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia at Melbourne):
i)a parenting course (dealing, inter alia, with the day to day care and supervision of a child of J’s age, and relevant developmental and protection issues); and
ii)an anger management course.
d)The father do:
i)contact the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia at Melbourne within 14 days for the purpose of obtaining the approval or nomination of the appropriate courses referred to in the preceding order; and
ii)pay the reasonable fees and expenses for or associated with the said courses as and when the said fees or expenses shall fall due.
e)The mother do forthwith acquire a suitable communications book, which book shall travel with J at the commencement and conclusion of each contact period.
The following orders were also made, but not by consent:
a)Until further Order, the mother have the sole responsibility for J’s long term and day to day care, welfare and development.
b)Until further Order, and upon request in writing from the solicitor for the mother, the father do undertake a supervised urine drug analysis test within 24 hours and forward the results of such test to the mother’s solicitor forthwith upon receipt of the same.
c)Paragraph b) above be subject to the condition that there be no more than six requests in total during the period from the date of these Orders to 20 October 2004.
d)Until further Order:
i)The father have contact with J as follows:
1. until the father has satisfactorily completed both the parenting course and the anger management course referred to above –
a.from 10.00 a.m. to 3.00 p.m. on each alternate Saturday commencing 13 September 2003; and
b.from 10.00 a.m. to 3.00 p.m. on each alternate Sunday, commencing 21 September 2003;
2. upon the father satisfactorily completing both of the said courses:
a.from 10.00 a.m. to 5.30 p.m. on each alternate Saturday (in accordance with the cycle established above); and
b.from 10.00 a.m. to 5.30 p.m. on each alternate Sunday (in accordance with the cycle established above).
ii)For the purposes of contact, the father do collect J from the home of the maternal grandparents at the commencement of each contact period and the mother do collect J from the home of the paternal grandparents at the conclusion of each contact period.
iii)The father do all such acts and things as shall be necessary to ensure that his parents, or either of them, are/is in substantial attendance during all contact periods.
iv)The father be restrained by injunction from collecting J at the commencement of any contact period unless he is accompanied by his parents or either of them –
1. at the time of collection; and
2. during the journey from the home of the maternal grandparents to the home of paternal grandparents.
v)The father be restrained by injunction from making derogatory, disparaging, insulting or offensive remarks regarding the mother to J, or in J’s presence or hearing.
vi)The father be restrained by injunction from harassing or stalking the mother, and from loitering or remaining in the vicinity of her home or her parents’ home other than for the purpose of collecting J for contact in accordance with these Orders.
e)Each party do provide the other with 14 days notice in writing of any proposed change to his/her residential address, and do keep the other party informed of his/her current landline and mobile telephone numbers from time to time.
f)The mother have liberty to apply on short notice in the event of any of the drug tests referred to above returning a positive result for cannabis or any other illegal or non prescribed substance.
g)Pursuant to section 62F(2) of the Family Law Act 1975 the parties confer with a counsellor to discuss the welfare of J — such counselling to occur at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia and to take place not less than 1 month and not more than 2 months prior to 20 October 2004.
h)The proceedings be otherwise adjourned for further hearing before Federal Magistrate Walters on 20 October 2004.
Notwithstanding the terms of the last order made on 11 September 2003 (see paragraph 55(h) above), and for reasons which are not now relevant, I dealt with the matter in Chambers on 19 October 2004. At that time, I appointed a child representative and adjourned the proceedings to 7 December 2004 for a directions hearing.
On 7 December 2004, all parties (including the child representative) were represented. Orders were made by consent, to the following effect:
(a)A family report is to be prepared.
(b)Should the family report writer recommend that either party attend for psychiatric testing, then such testing is to take place.
(c)Within 36 hours of an appropriate request being made, the father is to attend random supervised urine tests at the request of the child representative (and the father is to provide the results of such tests to the child representative and to the mother's solicitors).
(d)The matter otherwise be listed for final hearing on 30 May 2005 (with the usual orders relating to the filing of documents prior to trial).
The trial commenced on 30 May 2005, and continued on 31 May and 1 and 2 June 2005.
The Law
Residence and contact orders are parenting orders. They arise in proceedings conducted under part VII of the Family Law Act. Section 60B sets out the object of part VII and the principles which underlie that object. Residence and contact orders are subject to section 65E in that, in determining the outcome, the best interests of the child comprise the paramount consideration.
The importance of the section 60B principles varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive — not only because they are contained in section 60B, but also because they accord with what is generally accepted to be in the best interests of children[5].
[5] See B & B: Family Law Reform Act1995 (1997) 21 FamLR 676 at 734
In deciding the residence and contact arrangements that will promote the best interests of a child, the Court must consider the various matters set out in section 68F(2).
Section 60B is in the following terms:
60B Object of Part and principles underlying it
(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.
The Full Court discussed the effect of sections 60B and 68F(2) in B & B: Family Law Reform Act 1975 (1997) 21 FamLR 676 as follows:
9.53…the Court "must consider" the various matters set out in (a)-(l) of (section 68F(2)). That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge…The list is not intended to be exhaustive. That is made clear by par.(l) "any other fact or circumstance that the court thinks is relevant". This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
9.54Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s.65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s.68F(2) and to the overall requirement of s.65E. The matters in s.68F(2) are to be considered in the context of the matters in s.60B which are relevant in that case. But s.65E defines the essential issue.
9.55Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case…
In Smith (1994) 18 FamLR 55, the Full Court, referring to the manner in which the Court should discharge its obligation under the Family Law Act in coming to a decision relating to the custody, guardianship or welfare of or access to a child said:
…the preferable approach to be adopted is to consider each of the matters referred to in the section (being the equivalent of section 68F(2)) separately and, having regard to the evidence upon each of those matters, make findings in relation to them. In the course of this exercise, the trial judge should consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out.
In Paskandy (1999) 25 FamLR 607, the Full Court said (at page 618):
The Judgment of the Full Court in Smith (above) was delivered before the amendments to the Family Law Act made as a result of the Family Law Reform Act 1995 (Cth). However, the comments referred to remain apposite.
In relation to the significance of an existing status quo, the Full Court in Burton (1978) 4 FamLR 783 said (at page 786):
…we are of the view that no legal onus rests upon a party with whom a child is residing to show that a change would be detrimental to the child and no legal onus rests upon a party seeking a change to justify the change either by establishing that a change would be positively advantageous to the child or in any other way. An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case. When weighing that factor, the quality of the status quo would require examination — and if a long standing status quo is disturbed, then the factors which influence the Court to come to that conclusion should be clearly identified.
The Full Court’s remarks in Burton (above) were re-affirmed by the Full Court in Re: G: Children’s Schooling (2000) 26 FamLR 143 at 154[6].
[6] See also A v A: Relocation Approach (2000) 26 FamLR 382 at 405-6.
I shall deal further with legal issues later in these Reasons.
This is a “no contact” case from the mother’s perspective
In the present case, it is the mother's proposal that the father have no further contact with J. During the course of his closing address, Mr Sweeney (for the mother) submitted:
… it's one of the few cases where you can say "we have a no contact case that we're presenting”. Exhibit A in the case was the father himself. He presents … on any level as a person who not only lacks credibility, (but) is downright dishonest.
He is completely lacking in insight, he is vindictive, he is, even according to his own mother, volatile. He is controlling, he is demanding.
… The real question for the Court in cases of this nature is whether or not there is any benefit to the child in a continuation of contact, or whether or not there is even a risk to the child.
Mr Sweeney argued that there is no point to continuing with supervised contact (as proposed by the child representative), unless that supervised contact leads eventually to unsupervised contact. Mr Sweeney argued forcefully that the history of this matter indicates that ongoing contact between the father and J "… can't really … lead anywhere at all". Mr Sweeney submitted that the principal problem faced by the Court (and, obviously, by the mother and J) is that the father cannot be trusted to comply with orders that the Court might be minded to make in order to protect J from risk (in the broadest sense) and to promote her best interests.
I shall deal with the question of "unacceptable risk" later in these Reasons. As I put to Mr Robinson (counsel for the father), however, during the course of his closing address, the key to the present case is the issue of unacceptable risk to J. In my opinion, that which converts an unacceptable risk to an acceptable risk is often little more than confidence on the part of the Court that the contact parent will comply with such orders as it is minded to make in order to protect the child. During the course of his closing address Mr Robinson was obliged to concede that he simply does know which orders the father might be minded to comply with, and which orders would not be complied with.
In the circumstances of the present case, the father's attitude to compliance with orders of the Court is a very significant issue. Mr Robinson argued that the father should not be denied contact with J, whether or not he can be trusted to comply with orders intended to promote her best interests. He argued that an inability or unwillingness to comply with such orders does not give rise to an unacceptable risk to J or to her best interests.
In essence, Mr Robinson submitted that the Court should accept the father as he is, and that any risks associated with his unwillingness or inability to comply with Court orders are insufficient to warrant the making of orders which would have the effect of terminating the relationship between J and her father. In making such a submission, Mr Robinson suggested that many of the father's behaviours (such as "… the failure of [the father] to learn his lesson, that he's been given time after time, chance after chance”, his "failure to accept the financial responsibility of parenting" and his failure to comply with orders of the Court) are due to the fact that the father has "a personality dysfunction”, as assessed by Dr Kenny. Indeed, Mr Robinson did not shirk from making the following submission:
Your Honour can't, in my submission, unreasonably expect someone who has that sort of problem (being "a personality dysfunction") to behave as in a general way I'd describe it as normal people. He is doing the best he can …
Mr Robinson also submitted – in a telling concession – that the Court should not make the form of self executing (or “springing”) orders proposed by the child representative because to do so would be "… to set (the father) up to end contact probably within short order”.
Mr Sweeney also drew the Court's attention to the following factors (in addition to the father's failure or refusal to comply with orders of the Court):
(a)The father's denigration of the mother, and his general behaviour towards her.
(b)The father's irrational refusal to sign the birth papers.
(c)The father's attitude to the financial responsibilities of parenthood.
(d)The adverse effect upon the mother (both emotionally and financially) of the father's ongoing contact with J, including the fact that the mother has spent a very substantial amount of money (some $60,000) on the current proceedings, and the additional fact that the orders proposed by both the child representative and the father are likely to result in further proceedings when – as seems inevitable – the father fails to comply with relevant orders.
(e)The father's drug usage – and the effect of his unsatisfactory evidence in relation to the same.
(f)The effect on the mother of orders being made for ongoing contact.
Observation of witnesses and credibility
I paid careful attention to the mother as she gave her evidence. She remained calm, the comments that she made were balanced, and she gave appropriate responses to the questions that she was asked. She also made appropriate concessions where necessary. She gave credit where it was due. I was impressed by her as a witness, and I find that she is a witness of truth.
I also paid careful attention to the father as he gave evidence. Whilst litigation is clearly a stressful experience for a litigant, and whilst nervousness and anxiety on the part of the father are to be expected during the course of giving evidence, the father's conduct and demeanour in the courtroom could not fairly be regarded as wholly (or even substantially) attributable to such considerations. He remained wary and guarded throughout his evidence. He was rarely willing to make concessions when it was appropriate that he do so. He often demonstrated by his evidence that he was self-centred, or self-absorbed. His lack of respect for the Court, and for its procedures, was undisguised.
I once described a litigant in a case before me as being like "a coiled spring". The same description applies to the father in the present case.
During the course of his evidence, the father was often evasive, or non committal. Further, he seemed to repeat questions for no other reason than to "play for time", He was frequently argumentative, aggressive and short tempered. His ill feeling towards the mother was obvious. It amounted, at times, to vindictiveness.
The father was, in every sense, an unreliable witness. Mr Hoult submitted that the father had demonstrated that he is "a totally unreliable witness" and that "there is nothing in the father's evidence … that (the Court) can give any weight to at all". Mr Sweeney argued that most of the father's responses were unthinking, that the father is completely lacking in insight, and that he is vindictive and volatile. In addition, he argued that he is controlling and demanding.
Mr Robinson made no attempt to suggest that the father was a satisfactory or credible witness. He accepted Dr Kenny's description of the father as having "a personality dysfunction". He also said:
There's no doubt my client was unpredictable. There is no doubt that in the witness box he was incomprehensible at times.
I accept the descriptions of Mr Hoult and Mr Sweeney as they relate to the father as a witness. Where the evidence of the parties is in conflict, I have no hesitation in preferring the evidence of the mother. Indeed, I have considerable difficulty in giving credence to much of what the father said during the course of his evidence.
As I have recorded above, I accept that litigants can appear to be confident (or overly confident) or calm, or anxious in the witness box, and that such aspects of a witness's demeanour are not, of themselves, bases for disbelieving the witness. Nevertheless, I had ample opportunity to observe the sorts of factors described by Isaac J in Dearman (1908) 7 CLR 549 at 561:
A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type.
Further, I have (obviously) heard and seen all of the evidence during the course of the two trials (in 2003 and 2005). I have had the opportunity to reflect upon it, and to weigh all its various elements against each other. The observations that I made (and which I have recorded above) were noted during the course of the proceedings, and crystallised (as it were) during counsel's closing addresses in early June 2005 – at a time when all aspects of the trial process were completely fresh in my mind. I would add that I have reread my notes and the entire transcript during the course of the preparation of these Reasons, and I am satisfied that my findings regarding the parties’ character and personality, and their credibility – as unpalatable as they might be for the father – are fair and accurate.
2003 proceedings – some issues
The trial that took place in September 2003 occupied two days. On the first day, the father and his mother gave evidence, as did the mother and her parents. All were cross-examined (but without the assistance of the child representative – who had not been appointed at that stage). No experts gave evidence.
Pursuant to orders that were made in March 2003, the father had had some very limited periods of contact with J at Gordon Homes Contact Centre. In July 2003, he commenced having contact with her at his parents' home on the basis of a four week cycle. The March 2003 orders required the paternal grandparents (or either of them) to be in substantial attendance on each occasion. In paragraph 6 of his affidavit sworn 8 August 2003, the father described the contact arrangements as follows:
Contact at my parents' home commenced on 16 July 2003. Either my mother or father are present when I have contact with J which has been occurring twice a week on Wednesdays from 5.30 pm until 8.30 pm and either on a Friday from 5.30 pm until 8.30 pm or alternatively on a Saturday from 10 am until 2.30 pm.
It was the father's case - in September 2003 - that contact had proceeded well.
At that stage, the father was living in his parents' home. In paragraph 9 of his affidavit sworn 8 August 2003, however, he said:
I … intend when I am able to obtain accommodation of my own. I have arranged with a friend, ST, to obtain a house, however it will not be until at least October [2003]. In the meantime, I will continue to live at my parents’ home … Once I have obtained alternate accommodation, and prior to contact commencing at my new premises, I would be quite prepared for the mother to inspect same.
In paragraph 10 of the same affidavit, the father said:
Two drug screen tests have been positive for cannabinoids. I do not smoke regularly. Unfortunately I have been with friends on a couple of occasions when at a party cannabis has been available. It is not something I do regularly nor would I ever contemplate smoking cannabis or permitting anyone else to smoke cannabis in the vicinity of J. Nevertheless, I appreciate that the mother will be anxious as a consequence of the positive tests as I realise she is anxious about J and how the contact progresses …
At the time of the September 2003 trial, counsel for the parties (Mr Robinson and Mr Sweeney) defined the issues for trial as follows:
(a)The father’s attitude to the appearance of his name on the birth papers.
(b)The father's drug use, its level and whether it impacts on his ability to care for J.
(b)The father's capacity to properly care for J during contact periods.
(c)The father's behaviour towards the mother (and others) – including whether he should attend an anger management course and whether appropriate restraining orders should be made against him.
(d)Whether the father's contact with J should be supervised (in a formal or informal sense).
(e)Whether the father should be required to attend and complete a parenting course.
It was not in dispute that J should live with the mother and that she should have sole responsibility for J’s day to day care, welfare and development. Nor was it in dispute – at that stage – that the father should have contact with J. The question before the Court in its broadest compass related to the type of contact that the father should have, and relevant safeguards.
The father was no more impressive as a witness, and no more credible, in the September 2003 trial than he was in the 2005 trial. For essentially the same reasons as those that have caused me to prefer the mother's evidence to that of the father in the 2005 trial, I similarly preferred her evidence to his in the September 2003 trial.
The Birth Certificate Issue
In my opinion, a good example of the father's irrational and unreasonable attitude is what was described in the September 2003 trial as "the birth certificate issue".
During the September 2003 trial, the father conceded that the mother wanted to have his name registered on J’s birth certificate as the father of the child. He also conceded that the mother had raised the issue with him on a number of occasions and that she regarded it as a very important issue. Further, he conceded that the mother felt that it was J’s right to have her father registered on her birth certificate.
As well, the father conceded as follows:
a)In March 2003, I (as the presiding Federal Magistrate) raised the issue of J’s birth certificate with the father in open Court, and asked him whether he was prepared to sign the birth papers.
b)In response to the above query, the father said – again in open Court – that he would sign the relevant documents.
c)As at the start date of the September 2003 trial, however, the father had not signed the birth papers.
The father was cross-examined by Mr Sweeney in relation to this issue on 10 September 2003. Relevant extracts from the cross-examination are as follows:
Would you agree with me that right from the very start this was a significant issue between you and the mother whether or not you’d sign and be recognised as the father of J? - Yes, I needed to be sure it was my child.
You’re now sure, aren’t you?---Now I am sure, yes, I am.
You were sure in March?---When the results came in, yes.
…
You’ve done nothing about being registered, have you?---I think it’s a very serious thing to write your name down on a piece of paper and say that you’re the child’s father.
Very serious and important for the mother, for the child and for yourself. Right?---As far as everyone knowing who everyone is within that family, so to speak, yes, very, very important.
In the best interests of the child to know who her father is. Right?---Mm’hm.
You haven’t done anything about being registered, have you?---No, I haven’t. I am registered with child support.…Why have you done nothing about being registered (on the birth certificate)?---I don’t feel secure in knowing that my child is being raised in an environment that would involve the participation of both of her parents in her upbringing. Therefore, I’m not really secure in the child’s wellbeing. I won’t put my name to a piece of paper that ultimately makes me responsible for being her father.
…
You don’t feel comfortable in being recognised on the certificate as the father of this child. Is that a fair comment or not?---Unless I know that child is safe and secure, yes, I do feel uncomfortable.
Do we infer from the very fact that you haven’t registered---?---That I don’t feel that the child is safe and secure.
That you don’t feel the child is safe and secure, that’s a fair comment too, isn’t it?---Yes.
So you don’t think that the child is being brought up in a safe and secure environment. Is that a fair comment?---Yes. I don’t know because I don’t see it. No-one has told me what happens in the day-to-day care of this child.
You tell me why this child ought not have your name registered on her birth certificate as the father?---I just have.
…
Summarise for us so no-one is under any illusion here, Mr P , why have you not registered on this child’s birth certificate, why have you not signed documents to be registered as the father of the child?---I don’t believe I can answer you any further than I have
Summarise it for us?---Until I know that my child is safe and secure I wouldn’t put my name to that certificate. But other certificates such as child support I’ve called up and signed up and made myself liable for the following day after the last court case.
I’ll come to that in a minute. So it’s all about this child. You’re not going to sign this until you know your child is safe and secure?---Yes, it’s a legal document.
So what you want, Mr P, is an order of this court that you sign or else you’re not going to sign, fair comment?---No, I will sign. I will sign.
When?---When I know my child is secure and safe.
…
You believe right from the very start that there was a strained relationship between you and my client simply because she was demanding all the time that you sign a birth certificate. Do you agree with that?---No.
Have a look at this document. What is that document? What is the document, Mr P?---It’s from the Monash Oakleigh Legal Service.
Who are they?---A legal service.
Who did they represent?---Me.
You’re Mr P, aren’t you?---Yes.
Read out the highlighted part for me if you could in a loud voice. Read it out loud, Mr P. There’s one sentence there, one sentence highlighted there I want you to read out loud?---All right. “Mr P believes that any strain in the relationship with your client is based on demands that he sign J’s birth certificate.”
Isn’t that exactly the proposition I just put to you, Mr P? Are you listening to me, Mr P?---All right, yes, it was what you just said. I agree.
Which you just deny. Right?---Yes.
You knew right from the start that there was a strained relationship between you and her because of your failure to sign this birth certificate. That’s what you said. Right?---I don’t know. I’m not sure.
…
Did you ever use that as the excuse that you didn’t believe your child was safe and therefore you weren’t going to sign?---I’m sorry?
Did you ever tell Ms C that until you know the child is safe you’re not going to sign it?---That’s possible.
I’m not asking you whether it was possible. Can you recall ever saying that?---No, I can’t, but I could imagine that could be something that I would say.
The father's mother was also asked questions about the father's refusal to sign the birth papers. Although Mrs P confirmed that she was aware that her son did not want his name to appear on J’s birth certificate, she asserted that she did not know why he had adopted such a stance. She did not suggest that his refusal had anything to do with his alleged concerns regarding J’s safety.
Notwithstanding the father's assertion that he had not signed the birth papers because of his “concerns” regarding J’s safety, the fact of the matter is that the father did not raise any such concerns as part of his case leading up to the September 2003 trial. Indeed, it was not in issue that J should continue to live with her mother.
In my opinion, the father's expressed reasons for refusing to sign the birth papers were incomprehensible, as the extracts from the transcript reproduced in paragraph 96 above confirm. To use a colloquialism, he "ducked and weaved" around the subject during the course of his evidence, and I find that his real motivation was simply to upset and frustrate the mother. He certainly provided no adequate reason as to why he advised the Court in March 2003 that he would sign the birth papers and then consciously declined to do so.
The Father's Use of Drugs
During the course of his evidence in the September 2003 trial, the father said that he had been trying hard to avoid an environment in which the use of marijuana is prevalent. He indicated however, that he was comfortable with the use of marijuana and did not consider that an environment in which it was used was "a bad environment".
The father conceded that orders made some eight months before the trial required him to submit to random urine analysis. He then said that he had not used marijuana at all for that period.
When confronted with a positive drug screen (resulting from a test conducted a few weeks prior to the trial) the father said that he had been in an environment – on one occasion – in which the smoking of marijuana had taken place. In other words, he suggested that the positive result was caused by "passive smoking".
When the contents of paragraph 10 of his affidavit sworn 8 August 2003 were put to him by Mr Sweeney, the father had no satisfactory explanation for the discrepancy between his sworn evidence in Court and his sworn evidence as contained in his affidavit.
Mr Sweeney put to the father that the mother had only requested that he undergo random drug testing on two occasions during the relevant eight month period leading up to the trial, and that on both occasions positive results had eventuated. In response, the father suggested that the first of the two positive results had not been confirmed. He later accepted that the test was not confirmed as either negative or positive.
The father conceded (ultimately) that he had a number of convictions in relation to drug offences. But he was unwilling to take clear responsibility for any of them. When pressed by Mr Sweeney, he said:
I have history with drugs just like I've got history with alcohol or with mowing a lawn or painting a house or fixing a car. It's just a part of life.
From time to time during his cross-examination, the father endeavoured to deflect potential criticism of his drug use by suggesting that there existed some form of equivalence between his history of drug use and that of the mother. I reject such a suggestion completely. The evidence did not support it in any way.
During the course of his cross examination, the following exchange occurred between Mr Sweeney and the father:
If you're off drugs completely and you're not hanging around with these blokes or these people in smoke filled rooms anymore, Mr P, it won't be any concern for you to continue to provide a period of drug-free samples, is it?---I don’t know. It depends on the conditions that you are going to – what am I going to get for my trouble of staying out of this environment? What am I going to get as far as my child goes?
What do you mean by that?---Well, you want – I'd like some access to my child. The only reason I've stayed away from this environment, say motorcycle shops and stuff, which could also be another income for me – if I am to stay away from that, what are you going to – what am I going to be able to get from yourself?
We're not here to negotiate, Mr P. I am putting this to
you?---I believe that we are.
I shall return to those comments later in these Reasons.
The Father's Imminent Move
During the course of his evidence in the September 2003 trial, the father also spoke of his intention to move. After saying that he proposed to live with a "good friend", S, the father said that his proposed residence would be "somewhere between Cheltenham and Frankston". He was less than clear as to when the move was likely to take place.
The evidence reveals that the father did not move from his parents home between the 2003 and 2005 trials.
September 2003 trial – further observations
It is difficult to describe the overall impression given by the father during the course of his evidence in the September 2003 trial. I have described my impressions of him in relation to the 2005 trial, and indicated that they apply with equal force to the earlier trial. I was unable to believe much of what the father said, and I find that he is not a witness of truth. He was as petulant, argumentative and evasive during the earlier trial as he was in the later trial. His lack of respect for the mother personally, and for her role as J’s mother, was almost palpable – and certainly obvious from the evidence that he gave. In my opinion, his attitude to the responsibilities and duties of parenthood was perfectly illustrated by his response to Mr Sweeney's question regarding his willingness to continue to provide samples for drug analysis[7]:
[7] See para 107 above.
What am I going to get for my trouble … ? What am I going to get as far as my child goes?
Although Mr Robinson suggested that the father's response related to a single question, and that it was not his whole approach to the proceedings, I disagree with counsel in that regard. On the basis of the evidence before me – and, in particular, on the basis of the father's evidence – I have no doubt that the father was in September 2003, and remained in mid 2005, far more concerned about his perception of his own "rights" than about the best interests of J. Such an approach is entirely consistent with the expert evidence to the effect that the father regards himself as "a victim".
It was abundantly clear from the evidence before me in September 2003, as it was from the evidence before me in mid 2005, that the parties simply cannot communicate – and Mr Robinson did not suggest (at any time) that they could. It was my view in September 2003, and it remained my view in mid 2005, that the father is unable to see beyond his own individual needs and wants.
“Apprenticeship”
During the course of the September 2003 trial, I indicated that, in my opinion, it would be necessary for the father to "serve an apprenticeship" (as it were) to demonstrate that he could communicate with the mother where necessary and that he could accept limitations on his personal behaviour where those limitations might be perceived as being in the best interests of J.
It was in the above context that the consent orders were made following the September 2003 trial. There can be no doubt that those orders were intended to define and confine the form of "apprenticeship" that it was agreed that the father should serve.
Notwithstanding all of the Court's concerns regarding the father and his attitude to the responsibilities and duties of parenthood, it was clear in September 2003 (as it was in mid 2005) that the father has a good relationship with J. The major difference between the two hearings is that the mother did not oppose contact in 2003. By the completion of the father's evidence in 2005, however she had instructed her counsel to advise the Court that contact was opposed.
Before dealing in more detail with the 2005 trial, it is appropriate that I observe that, in my opinion, the father had adopted a logical, measured approach to his ongoing contact with J during the period prior to the 2003 trial. He remained relatively patient in relation to contact and – by and large – complied with Court orders insofar as the contact itself is concerned. The problems at that time were the father's attitude to the responsibilities and duties of parenthood (in the broadest sense) and his hostility towards and lack of respect for the mother. Mr Robinson did not suggest that the father's attitude in this regard was not an important factor in the case. It was my view then, and it remains my view, that it was important for the father to understand that it would be necessary for him to control and modify his behaviour. If the father is unable to control himself in one area of his life, then concerns necessarily arise as to whether he is able to control himself in other areas. For example, the father may be unable to resist criticising the mother in front of J.
The 2003 trial was conducted without the benefit of input from experts. The 2005 trial was different. A child representative had been appointed by then, and evidence was presented from a psychiatrist and from an experienced family report writer.
2005 Trial – Dr Kenny's Evidence
With the consent of counsel, Dr Kenny was called by the Court. All parties had the opportunity to cross-examine him.
Dr Kenny's qualifications were not in issue, and all parties accepted him as an expert.
Dr Kenny had psychiatrically assessed the mother and the father. A considerable amount of relevant material had been provided to him in relation to the proceedings, and before he saw the parties.
In his report relating to the mother, he summarised her background and the history of her relationship with the father. After recording his observations, he concluded:
… I see her as an intelligent, animated, well-adjusted person, competent in all aspects of her life, without any psychiatric disturbance of any kind. She thinks she may be a little too passive. She said people have said she may be a little pedantic but they are not serious problems and not really relevant to this matter. I have no hesitation in seeing her as a perfectly competent parent – at least from the point of view of a psychiatrist.
Dr Kenny also prepared a report in relation to the father. In it, he summarised his background and the father's version of the history of his relationship with the mother.
In relation to the father, Dr Kenny wrote:
·He said that he is a qualified mechanic and a bricklayer, but he can't cope any more because he can't concentrate because his baby has been "taken away".
·I asked him about his consumption of illegal drugs. He told me that he smoked marijuana but not to a great extent, doesn't smoke regularly at present and said it was only ever about once a week. He said that there has been a problem with these urine drug tests that have shown that he has marijuana in his system and he understands that sometimes marijuana will stay in one's system for a long period of time (indeed that is true if a person has been a heavy smoker).
But he said he does not smoke regularly at present, but I was unable to get a clear description of what exactly that means.
·The longest time he has held a full time job was one and a half years. The longest period out of work was one and a half years at the age of about 20. He couldn't tell me what was the last job he had.
·I could not get a coherent description of his work history. He said he has been out of work now for some few years. He relates that to the fact that he can't concentrate because "they've taken his baby" from him. At present he works half a day a week doing motorcycle repairs, the rest of the time he just "stresses".
Dr Kenny described the father as follows:
He was a fairly tall, very slim fellow with a rather exuberant and perhaps somewhat overactive manner about him. I have to say I could not consider him to be a reliable witness. I didn't think his reasons for not working really made sense. I could not get a clear description of the extent to which he was drug using. He said the relationship with "the mother" was all "blurry".
I noted that he was fairly quickly roused to indignation …
He tended to see the problems in "the mother" and not in himself. He denied that he had serious problems …
I did not see him as being hallucinated, deluded or thought-disordered, but really could not see him as being a particularly reliable witness.
Dr Kenny also wrote:
I have read the extensive documentation and I noted the difficulties that the Court had in getting information about his drug use, the financial support payments, about the issue of having his name on the birth certificate et cetera.
The impression he made in this interview was certainly consistent with the way he must have presented in Court.
Dr Kenny's opinion in relation to the father was as follows:
… I certainly would not regard [the father] as a reliable witness.
Of course, that is not uncommon when the person is attending for an assessment somewhat reluctantly and is on the defensive.
I do not see him as having a psychotic condition. But the evidence would suggest that he has marked behavioural problems –
·His work record is obviously very patchy indeed.
·He would appear to have used drugs to a considerable extent – but I am unable to say with any degree of confidence to what extent.
·He seems to lead a relatively aimless lifestyle and I must say I saw him as fairly quickly aroused to hostility.
So I see his presentation more in terms of personality dysfunction than in terms of formal psychiatric illness.
Of course, that personality dysfunction per se is not necessarily enough to say that he should or should not have contact with his child. Nor is it enough to say whether that contact should be under supervision or not.
But on the basis of the way he presents and information I have read, I would certainly have reservations about him having unsupervised contact. However, my view is that the decision has to be made on the basis of the behaviour that he has demonstrated in terms of the contact that he has had thus far.
For example, if he had been able to conform clearly to the orders, if he had demonstrated an ability to effectively parent, perhaps contact could be gradually extended.
On the other hand, if one accepts that he is unreliable, does not conform to orders, is aggressive, unpunctual, resistive to what orders there are, then one has to wonder whether there is any purpose in the contact at all. [Emphasis added]
Dr Kenny continued:
It is probably worth making the point that I am not convinced that parenting courses, anger management courses et cetera will make a difference because I believe this man has relatively long term personality/behaviour problems.
But in my view, the decision must rest upon the behaviour that he has demonstrated and the extent to which the Court accepts that reports of his behaviour are correct. He is not going to change. There is little else I can add. (Emphasis added).
Dr Kenny repeated the same "general comments" relating to the parties in both reports. They are as follows:
In this particular Family Court matter, I have no reservations at all about the mother. She is an intelligent, competent person who appears to be well intentioned and I can well imagine she would be a more than competent parent.
On the other hand, one must have significant reservations about [the father] – from the way he presents in interview and more particularly, the behaviour that he has reported as having demonstrated.
This is one of those situations where I am of the view that if he were to have extended contact or unsupervised contact, it has to be earned by his demonstration that he can conform to what orders there are with a view to gradually moving towards less restricted contact.
It must surely depend upon his demonstrated ability to do that, which of course requires a considerable degree of impulse control. (Emphasis added)
During the course of his oral evidence, Dr Kenny –
a)confirmed that a personality dysfunction is similar to a personality disorder, and that underlying personality problems of that nature cannot be effectively treated;
b)agreed that there is no solution to the father's personality dysfunction if he is not intent upon trying to change his ways;
c)agreed that "the probabilities are" that the father is likely to require supervised contact ad infinitum;
d)agreed that "the worst thing that could happen" to a child of J’s age would be to have the primary relationship between her mother and herself interfered with;
e)agreed that if the father is saying or doing things to undermine J’s relationship with her mother, then such behaviour must certainly stop – because it is putting J at risk (in the sense of interfering with her short, medium and long-term development);
f)denied an assertion made by the father during the course of his evidence that Dr Kenny had – in effect – given him "the bum's rush" (in other words, hurried him along inappropriately);
g)confirmed that his understanding of the father's comments during the course of his interview with him was that the father had indeed smoked marijuana much more recently than approximately two and a half years ago (which was the primary evidence given by the father in Court);
h)agreed that it is important for the father to comply with all orders, and not to "pick and choose" (as it were) – because "… one of the important things … in this sort of situation is to be predictable about conforming to the orders"; otherwise the Court cannot know in advance which orders a person is going to comply with and which they won't comply with;
i)was of the view, having read Ms Slattery's report, that "… it looks as though a satisfactory relationship is … developing (between J and the father)", but it has not necessarily developed at this point in time;
j)said that the fact that J and the father relate well to each other is "certainly very promising", but does not mean that their relationship is "a developed functional relationship";
k)said that there needs to be something more than periodic contact to create a satisfactorily developed relationship – so that if the person is only having contact for a few hours per week, then the relationship between that person and his or her child can only developed "to a certain level";
l)said that the father did not accept responsibility for his past behaviour;
m)said that the father gave Dr Kenny the sense that the father had been treated as a victim (or persecuted); and
n)observed that people with the father's "sort of dysfunction" tend to project blame and responsibility everywhere else but themselves – which behaviour restricts the likelihood of change.
I was impressed by Dr Kenny, and accept his evidence without reservation. In the present case, the court cannot help but conclude that the father is indeed “unreliable, does not conform to orders, is aggressive, unpunctual, resistive to what orders there are”[8]. Further, the court cannot help but find that the father is not going to change.
[8] see paragraph 127 above
At the conclusion of Dr Kenny's oral evidence, I asked him about the mother's anxiety regarding the father's behaviour and the impact, if any, that such anxiety might have on J. His response was as follows:
… I think parental anxiety is certainly transmitted very easily to children. I think that's fairly clear. I have to say the mother at this stage said something to the effect that she would like him to be out of her life now. I am sure she would feel much more comfortable and relaxed about everything if in fact the father had no contact with the child. But I have to say that I see the mother as basically a strong, resilient person who has the ability to cope quite well with difficult situations. But I certainly see it as a stressful issue for her …
2005 Trial – the Father's Evidence Generally
By the date of the 2005 trial, it was clear that the father had finally signed the birth papers.
The only affidavit filed by the father between August 2003 and the date of the trial in 2005 is his affidavit sworn 13 October 2004. In this affidavit, the father says – and I accept – that he has completed an appropriate parenting course. He also attended and completed a 13 week anger management course.
The father asserts in his affidavit that his contact with J is progressing well, and that they have a good relationship with each other.
The father's affidavit (which is very short) also includes the following paragraphs:
11. I would like to expand my hours at [the father's place of work] and eventually be earning enough to rent my own premises. At the present time I am still living in a caravan at the rear of my parents' premises. I want this to be a short term step and would like to relocate to my own rented premises as soon as practicable. Once I have obtained alternate accommodation and prior to overnight contact commencing, I would be prepared for the mother to inspect same.
12. In the past, I have had drug screen tests which have been positive for cannabis. I do not smoke cannabis now. I may have the occasional social drink, perhaps twice a month. In the past, I have been with friends at a number of social occasions where cannabis has been smoked and it is on these occasions when I have smoked. I would not contemplate smoking cannabis or permitting anyone else to smoke cannabis in the presence of J. I recently had a drug test, the result of which was negative.
2005 Trial – the Father’s Evidence in relation to the use of drugs
Attached to the father's affidavit is a report from Melbourne Pathology. It records that the father gave a sample on 20 September 2004 which tested negative for cannabis. The report records, however, that the father's urine "… has a low creatinine which indicates the possibility of diluted urine". The same document records that the father tested positive for cannabis on 1 June and 5 August 2004 – although the tests were apparently "without confirmation" and were therefore "presumptive only".
The father was cross-examined about his cannabis use. During the course of his evidence he confirmed that, during the September 2003 trial, he "… deliberately defied the Court and said that he would (use cannabis)". He asserted, however, that he had not smoked marijuana since Christmas 2003.
The father's evidence in relation to his use of marijuana was confusing and inconsistent. He did not satisfactorily explain why Dr Kenny recorded or gained the impression that the father was still smoking marijuana – beyond blaming Dr Kenny for "giving him the bum's rush". At the same time, and in answer to a question from Mr Sweeney as to what he told Dr Kenny, the father replied:
I don't know what I told him. I got no idea what I told him.
2005 Trial – Father's Allegation that J is "at risk"
During his cross-examination by Mr Sweeney, the father was frequently argumentative, aggressive and short tempered. After conceding that he had failed to comply with the request to provide a urine sample for analysis, he said:
If I didn't do it, I didn't do it. If I did do it, I did do it. After coming to the Court the last time, I felt such duress and felt that I hadn't been listened to that – maybe I didn't do it; I don't know. My only concern is for J, her well being. I was trying to tell the Court that the mother's family wasn't safe because of the mother being raped when she was a child by her family, as she told me.
Shortly afterwards, the cross-examination continued:
You tell us, in summary, is the child safe?---No, I don't believe so. I believe there's an element of risk that hasn't been addressed by the Court, but other than that, I've got nothing more to say on that in Court.
But you've got a lot to say outside Court, haven't you?---Absolutely, because outside Court people will listen.
What you have been saying outside Court is "I'm going to go to the TV. I am going to go to the TV show"?---I've never said that to you.
Who have you said it to?---I've never said it to you.
Have you said it to anyone?---Don't know. Might have done.
Is it possible you said … ?---I might have done. I might have said it to everyone I met. I am not sure.
Mr Robinson's cross-examination of the mother regarding the father's "concerns" included the following:
Because he is concerned based on what you said to him -- because he is concerned about what might go on in the home, you do not want him involved with your daughter and you think it's best for her not to know him? -- -- What I told him should give him no concern about what goes on in my home.
The fact that your parents did not know about the abuse that you suffered and did not do anything about it when they found out? -- -- They found out when this case came to Court. I did not tell them. He knew I had not told them. It was to upset me because he was saying: “If you do not give me what I want, this is what I am going to do. I am going to take you to Court. I am going to say this about you". It's emotional blackmail.
Can you understand that from his point of view he has found out that you were abused in your home? -- -- I was not abused in my home.
That you were abused? -- -- Once.
And that your parents did not know about it and obviously had not taken whatever precautions they needed to take to protect you from it? -- -- It was my fault. I told them I was going to a friend's house. I told them the parents would be there. They were not there. An uncle came into the house…
I am not asking you to relive it? -- -- Well, that is what he was told.
What I am just saying to you is can you understand how he would feel a level of concern about the family home that you came from? -- -- No, I do not. I am sorry, I do not see it
I shall comment further upon Mr Robinson's cross-examination of the mother later in these Reasons. Suffice it to say, at this stage, that I accepted the mother's evidence as it relates to this issue (just as I accept the mother's evidence as it relates to all other issues). It follows that, in my opinion, the father's "concerns" are irrational and unfounded. The mother's description of the father's attitude as amounting to "emotional blackmail" is fair and accurate.
The fact of the matter is that the father produced no evidence – at either trial – to fairly suggest that J might be at risk in the mother's care. The issue is not dealt with in the father's affidavit evidence (where, of course, one would expect to find it if it was a significant concern on the part of the father). From a forensic or litigation point of view, the father's professed concerns were a non-issue – notwithstanding that Mr Robinson cross examined the mother (to some extent) regarding the “risk” issue. To the extent that it might be perceived to constitute an issue in the proceedings, however, I would simply record that I accept the mother's evidence in relation to her care of J and her explanation (as provided to Dr Kenny) that the relevant incident occurred when the mother was 14 (when a friend's uncle "tried to have sex with her", but did not succeed because she "gouged his eyes").
Indeed, both of the mother's parents gave evidence in the September 2003 trial, and not a single question was directed to them relating to the father's allegations or “concerns”. The mother's mother gave evidence in the 2005 trial and, again, the subject was not raised with her. Although the mother's father had sworn an affidavit in support of her case, he was not required for cross-examination in the 2005 trial.
During the course of his cross-examination by Mr Hoult, the father consistently refused to give the mother credit where it was due – for example, in relation to the performance of her role as J’s mother. Mr Hoult also pressed the father for further details of his view that J might be "at risk" in the mother's care. For example:
You maintain your view that for as long as J is living in that particular house she is at risk?---With her grandparents and that sort of thing. I don't really know what's going on anymore.
But do you maintain your position that J’s at risk of being raped? Is that … ?---I can only assume that she can be at risk.
Of being raped?---Of something happening that's not right, as has happened to the mother and her parents wouldn't talk to the mother about it and, as a result, the mother suffered.
What is it? Tell us what it is you're worried about, what's going to happen?---I'm not sure until it happens.
She is going to be sexually abused by somebody?---Yes, it could even just be verbal abuse that the mother tolerates. I don't know.
From her parents?---No, from maybe her parents or the way the mother relates to a boyfriend. I'm not sure.
Later, the cross-examination continued:
Just so that I can totally understand this. You'll just continue [telling people about your concerns] for as long as J is living in that household; you'll continue to raise your concerns with people about whether she is safe or not. Correct?---For as long as – yes, J doesn't have the security of knowing that her father will look after her.
There will come a point in time when you'll approach J about this as well, I take it?---No.
Never?---No. The day may come, but not where I approach J. If J has questions that she wants answered as an adult, yes, she can ask and I'll answer.
What's an adult, what age?---When she's finished school. Between now and then it would be all peaches and cream.
You wouldn't raise with J that you're worried that something might have happened to her mum and her grandparents?---No way.
On the following day, Mr Hoult returned to the subject during his cross-examination of the father:
I take it … that it's not so much the mother, but its her parents that you're worried about?---I'm not sure. I don't know what effect – what has happened in her family – has truly taken on the mother and how that could flow on to my child.
I take it that for as long as J resides with her mother and her mother's parents you will always have these concerns?---Always.
And you will always express them?---To anyone that wants to ask me or listen.
… to anyone that wants to listen to you. Correct?---Yes, anyone that wants to ask or listen.
Maybe, just so that I understand it, because I don't, quite frankly, can you explain to his Honour now exactly what those concerns are so that my instructor can write it all down?---They're concerns.
Tell us what they are?---Concerns.
That means nothing to us. What are the concerns?---Well, if it means nothing to you, maybe you're …
Tell us what the concerns are?---I don't know. I'm concerned. The mother was in tears, she was crying, telling me how her father had let her down. They are my concerns. If that's repeated, I don't want anything to go wrong with J.
As J’s father, tell us the concerns that you have with J?---I'm sorry, I've just told you the best that I can what my concerns are.
That's it?---Yes, anything is possible; anything could happen.
After conceding that the issue of denigration is an important one, Ms Slattery seemed unwilling to accept that the father's behaviour in that regard would likely lead to an undermining of the relationship between J and the mother, although she conceded that such an undermining would be possible. Suffice it to say that I prefer Dr Kenny's evidence in relation to this subject. Ms Slattery did say, however, that the father's denigration of the mother would affect J, in that it would leave her feeling upset and confused.
I have dealt with those aspects of Ms Slattery's evidence that I consider most relevant elsewhere in these Reasons. I have considerable discomfort with Ms Slattery's evidence, and with her recommendation. Clearly, a necessary inference from the Slattery's recommendation is that the father is capable of changing, and is willing and able to comply with court orders. The evidence before me, however, is that the father is not going to change and that the court cannot be confident as to which orders he might be minded to comply with and which orders he will not comply with.
Further, it seems to me that Ms Slattery lacked a degree of balance and objectivity in relation to her task. I formed the conclusion, during the course of her oral evidence, that she was determined to defend the report and the recommendations irrespective of factors that may legitimately impact upon their validity.
I have already commented upon some matters that concerned me regarding Ms Slattery's report and the evidence. She seemed unduly concerned that the mother had described the father as having a "psychosis" and by the fact that the father did not become aware of J’s birth until approximately two weeks after the event. She seemed incapable of satisfactorily explaining why it is not acceptable for a contact parent to denigrate a residence parent, and could think of little more to say regarding the father's intention to tell the world at large of his "concerns" regarding J’s safety than that it reflects "rather a sick attitude" on the father’s part.
I have read and reread the family report, and the transcript of Ms Slattery's evidence. The court is not bound to accept Ms Slattery's recommendation, although it is important that appropriate weight be given to it. In all the circumstances, I am of the view that Ms Slattery's recommendation should not be accepted. For reasons of which I am unaware, significant factors adverse to the father's case appear to have been "minimised", as it were. Further, I am concerned that Ms Slattery did not give sufficient consideration to the long-term implications for J’s welfare if contact is to continue. I accept, however, that she did not have the opportunity (as I did) to see and hear the father (and, of course, the mother) over an extended period of time.
Ms Slattery conceded that (obviously) it is not up to her to decide what orders should be made in the present case. She was clearly of the view, however, that unsupervised contact should not take place at this point in time. She agreed that supervision should not continue indefinitely into the future, and she also agreed that, if contact is to be terminated, then the sooner it is terminated, the better.
Domestic/Family Violence – an Analogy
Although there has been no direct evidence of domestic or family violence – as such – in the present case, I am clearly required to consider the question of “unacceptable risk” as it relates to ongoing contact between the father and J. Before doing so, I wish to refer to the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334. In that case, Waller LJ emphasised “the key points” in the judgments of the other two members of the Court as follows:
1.The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by Judges, and advisors alike;
2.It follows that alleged domestic violence is a matter which ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
3.In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
4.There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many, which (factor) may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the Judge applying the welfare principle and the welfare check list.
Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in section 68F(2) of the Family Law Act.
In Re L, Butler-Sloss P said that:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) if also cited with approval the following passage from the Judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. To often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
I completely agree with the comments made by Butler-Sloss P and Wall J in the passages cited in the previous three paragraphs. By analogy, similar (although clearly not identical) considerations are relevant in the circumstances of the case now before me.
The decision in Re L was cited with approval by Mushin J in K & K (2003) FamCA 1358. His Honour commented that (Re L):
…makes it clear that the balance between the need of children with an apparently good relationship with their contact parent to have on going contact, and the effects of family violence on a family, is a very difficult balancing act for a Judge.
His Honour was of the view, however, that:
I need to say to (the father) that the ways in which he has acted (cause him to be) a completely inappropriate role model for his children … I need to demonstrate to (the father) that he needs to get professional assistance.
Turning from the general to the specific, the father in the present case seems incapable of acknowledging that he has behaved inappropriately, and he has so far failed or refused to take any effective steps to “correct the deficiency in (his) character”. The evidence is that “he is not going to change”.
The father has done nothing to “demonstrate that he is a fit person to exercise unsupervised contact”. He has done nothing to demonstrate that he is “not going to destabilise the family”. He has done nothing to demonstrate that he is “not going to upset (J) and harm (her) emotionally”. Instead, he is unreasonably antagonistic towards and resentful of the mother, and unjustifiably mistrustful of the court. He feels victimised, but seems incapable of understanding that others have done no more than react as might reasonably be expected to his actions and attitude.
Unacceptable Risk
As already foreshadowed, the concept of “unacceptable risk” is relevant in the present context. It has its genesis in the decision of the High Court in M & M (1998) FLC 91-979. In that case, the High Court was dealing with a residence/contact case in which there had been allegations of sexual abuse.
The High Court said (at page 77,081):
Efforts to define with greater precision the magnitude of the risk which will justify a Court in denying a parent access to a child have resulted in a variety of formulations…this imposing array indicates that the Courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse (emphasis added).
In B & B (1993) FLC 92-357, the Full Court said:
…a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated: "Even in such a case, however, there may be a risk of disturbance to a child who is brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her (emphasis added).
Therefore, if supervised access poses an "unacceptable risk" of harm (or "disturbance"), whether physical, emotional or psychological, it should not be granted.
In A v A (1998) FLC 92-800, the Full Court considered the concept of “unacceptable risk” in the context of contact proceedings. After referring to M & M and B & B, the Full Court said (at page 84,995):
The task which (the Court) was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband…
The term identified by the High Court in M & M as “unacceptable risk” provides the touchstone for such an inquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involved the assessment of the risk of future physical and/or emotional harm…
… the primary question which (the Court) should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father’s care.
The question of the impact on a residence parent of permitting contact (or supervised contact) when the residence parent genuinely believes that a serious, unacceptable risk of harm to a child exists has been the subject of a number of cases[11]. Although the test to be applied in contact cases must ultimately be distilled down to determining what order is in the best interests of the child, the Court can conclude that contact may not be in a child’s best interests where, for example, there is “…such tension or hostility between the parent with the care of the child (or his or her partner) on the one hand, and the person seeking contact on the other, that this is likely to be exacerbated by contact, with resulting detrimental effects on the child”, or “…where contact would cause the parent with the day to day care of the child considerable anxiety, and this is likely to affect the child adversely”[12].
[11] See, for example, Sedgley (1995) FLC 92-623, Irvine (1995) FLC 92-624, Re Andrew (1996) FLC 92-692, A v A (1998) FLC 92-800, Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 and Fitzpatrick (2005) FLC 93-227
[12] See Dickey “Family Law” (4th Ed) at pp 450-1
In Re Andrew (1996) FLC 92-692, the Full Court declined to overturn a trial Judge’s decision not to allow a father to have face to face contact with his child. The trial Judge had found that the wife’s genuine fear of the husband was a major impediment to contact. That meant that the mother’s caregiving capacity would be impaired if contact was permitted — to the extent of being detrimental to the child’s welfare. In Sedgley (1995) FLC 92-623 the Full Court recognised that “the need for peace and tranquillity” in a residence parent’s household may be a more compelling need for a child than contact with the non-residence parent.
The Full Court in Sedgley also considered the trial Judge’s decision to give contact “one last try”. The father (who had previously been declared a vexatious litigant) had carried out “a number of provocative acts”, which had the effect of placing the mother under considerable stress (and which, in turn, affected her wellbeing and parenting). The Full Court concluded that the case “had reached that unfortunate point where a Judge is virtually compelled to say that, until the Court could be persuaded that the child’s welfare required (contact) to be reinstated, there should be no further (contact)’.
The Full Court then continued (at page 82,260):
The type of circumstances that might lead to reinstatement of (contact) would include convincing evidence that there had been a change in the husband’s behaviour which change could be sustained, and which change had been brought on after extensive therapy, or some maturation process. Another circumstance that may be thought to call for the reinstatement of (contact) would be convincing evidence that the child’s state had deteriorated because of the absence of (contact).
The Full Court added that the Court could also give consideration to the reinstatement of contact where the residence parent accedes to the proposition.
The Full Court emphasised (at page 82,260) that the decision to cut the relationship between a parent and a child is one which ¾ ordinarily ¾ the Court takes only with considerable hesitation.
In a recent case dealing with a mother’s application to terminate contact between a father and his daughter[13], Carter J said [14]:
[13] H & P (2005) FamCA 978 (unreported)
[14] at paragraphs 502-5
I look to the proposition advanced by the Full Court in Re W (Sex Abuse: Standard of Proof) (2004) FLC ¶ 93-192 that:
the termination of a worthwhile relationship between a parent and child ought, in most cases, be the course of last resort.
Moreover s 60B(2) of the Act of itself assumes the continuation of a relationship between children and each of their parents as being worthwhile if other factors do not act to countervail that position. (See Fitzpatrick (2005) FLC ¶ 93-227.)
I also note that in Re W (supra) after the citation I have just noted, their Honours had this to say:
The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial system often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than the erroneous positive finding that leads to a cessation of a parent/child relationship. The Court needs to be and remain conscious of this imperfection at all times.
In Fitzpatrick (supra) the members of the Full Court confirmed the decision of Kirby J in AMS v AIF (1999) FLC ¶ 92-852 that the best interests of the child is the paramount consideration of the Court, however, it is not the only consideration. The Court is also required to have regard to the legitimate interests and desires of the parents, however if there is a conflict between those considerations, then priority must be accorded to the child’s welfare and rights.
In Fitzpatrick (supra), the Full Court referred to the unreported judgment of the Full Court in Russell v Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993).
In Russell v Close, the Full Court recognised that "an appropriate consideration" is the residence parent’s belief that a child has been sexually abused whilst on contact and the effect of that belief on him or her as the primary caregiver. Consideration should always be given to whether a risk exists to the effect that a child's relationship with the residence parent might be undermined by the conduct of the contact parent during contact periods. The Full Court held that, in upholding a child's right to protection from sexual, psychological and/or emotional harm, "… the Court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact and adversely on that parent’s caregiving ability".
As recognised in Fitzpatrick, the mother's views are a factor that needs to be brought into the balance in determining whether J’s welfare will best be advanced by promoting contact with the father. In that case, however, there was insufficient expert evidence to enable the Court to assess the manner in which the mother might be affected in her capacity to care for her children if contact was continued. In such circumstances, the Full Court was of the view that it would be inappropriate to draw a conclusion that she might be so overborne by the contact as to be unable to function adequately as the principal caregiver to her children. That particular issue "… appear(ed) to have been left largely untouched in the evidence".
The interrelationship between the issue of (unacceptable) risk and the effect on the mother of contact if it is to be ordered was clarified by the Full Court in A v A (1998) FLC 92-800 at page 84, 996. Their Honours made it clear that the first step in the exercise (as it were) is to determine – on the whole of the evidence – whether contact might expose a child to an unacceptable risk (in whatever form). It is only in cases where the judicial officer reaches a conclusion that objectively there is no unacceptable risk that the Court would need to turn to the separate question of the residence parent's belief in the occurrence of the events in question as a separate matter. The relevant passage is at paragraph 3.29 of A v A, and is as follows:
The first inquiry is whether there is objectively an unacceptable risk. If there is, the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the residence parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
I turn now to consider the s.68F(2) factors.
Section 68F(2) Factors
J is a very young child. Her wishes are not a relevant consideration.
I find that J has a close and loving relationship with the mother and with the mother's parents. Notwithstanding the father's "concerns", there was no suggestion that J should not continue to live with the mother. Clearly, J’s primary attachment is to the mother.
The evidence reveals that J has a "developing" relationship with the father. It is not yet a "developed" relationship. The fact of the matter is that J has never spent an extended period of contact with the father. On the basis of the evidence presented during the case – as reviewed and discussed in these Reasons – there can be no doubt that it will be a relatively long time before there is any possibility of extended periods of contact being considered. Indeed, even Ms Slattery's recommendation was to the effect that supervised contact should continue at least until the middle of 2006.
I accept that J enjoys the time that she spends with the father, and that he is capable of caring for her – in a purely physical sense adequately. The problem in this case is not the father's physical care of J but his ability (or, perhaps more accurately, his inability) to recognise and adequately provide for her emotional and psychological needs. In other words, the issue distils down to whether ongoing contact presents some form of unacceptable risk to J. Only if I find that there is no "unacceptable risk" should I move on to consider the likely impact of ongoing contact on the mother's capacity as the residence parent. There is, however, a degree of circularity in the mandated approach as it adheres to the facts of the present case. The "risk" in the present case is not some form of direct physical threat to J emanating from the father – such as sexual or physical abuse. In some ways, the case would be an easier one to decide if it were. As foreshadowed in A v A, the identification or characterisation of the risk is important, because the Court is required to "... take steps proportionate to the degree of risk". I find that the risk to J can be described as a clear threat to her emotional or psychological health, in the form of a serious, sustained assault on J’s relationship with her primary caregiver, the mother. The evidence before me is to the effect that J’s short and long-term stability will be adversely affected (and seriously so) by the father's attitude and behaviour, including his determination to vilify the mother and her family in the manner already discussed at length in these Reasons. In other words, the nature of the risk itself is such as to impact on the mother's capacity as residence parent. It is in fact directed to her, and not to J.
For the sake of completeness, I record that I accept that J has an appropriate, loving relationship with the father's parents.
Termination of the father's contact with J certainly amounts to a change of circumstances. J has been having regular, brief periods of contact with the father for an extended period of time. At one level, and as I have indicated, the contact has been working satisfactorily. On the other hand, the evidence before me does not support any increase in contact at the present time – or, indeed, in the foreseeable future. In other words, the negative aspects of contact are also likely to continue. The "negative" (for want of a better description) aspects of contact as it presently operates include the friction at and generally unsatisfactory nature of contact changeovers, the friction between the father and his parents (or either of them) for so long as they are either supervising or required to be present at contact, J’s behaviour during the period shortly before and shortly after contact takes place, the ongoing denigration of the mother in the presence of (and probably to) J, and the ever present shadow of the father's "concerns" and the probability that they will eventually – whether directly or indirectly, and perhaps as a result of a process of "Chinese whispers" – find their way to J’s ears.
The evidence before me does not suggest that J will be significantly or adversely affected by the termination of contact with the father. In all the circumstances, I find that, although a permanent cessation of contact may be distressing for J in the short-term, it is likely that she will soon adjust to the new environment (in the broadest possible sense). There is no evidence before me that J is unable to cope with such an arrangement. I find that the mother has the necessary patience, understanding and sensitivity to reassure and support J at all times and to assist her to overcome whatever distress or discomfort she may feel as a consequence of the cessation of contact with the father. I would add that I have no doubt that the mother has not pursued her application for any reason other than that she genuinely believes that a cessation of contact is the only practical option available to her and to J. She clearly recognises the seriousness of the step that she has requested the court to take. I am satisfied that she has J’s best interests uppermost in her mind, and that she would not hesitate to reconsider the issue of contact if and when it became apparent to her that J’s best interests require her to do so. Further, I am confident that the mother will take steps to ensure that J continues to have an appropriate relationship with the father's parents.
I am conscious of J’s right to maintain personal relations and direct contact with her father on a regular basis. There can be no doubt that the termination of a worthwhile relationship between a parent and child ought to be the course of last resort. In the present case, however, the Court has been compelled to question whether a "worthwhile" relationship exists, or might ever exist, between J and the father. The entire history of the father's behaviour, together with Dr Kenny's conclusion that the father "is not going to change", lead inexorably to a finding that ongoing contact will simply mean "more of the same".
I find that the father will not (probably because he cannot) modify his behaviour in any way. He will continue to use marijuana, he will continue to be sullen and uncommunicative – if not openly aggressive – at contact changeovers, he will continue to make a minimal financial contribution in the form of child support, he will remain resentful of the mother, he will continue to see himself as a victim, he will continue to "pick and choose" the orders that he is minded to comply with, he will continue to voice his "concerns" to more and more people, and he will – as night follows day – ultimately compel the mother to return to court to seek further orders designed to promote J’s best interests.
I have been urged by the child representative to give the father another chance – to give contact "one last try". The problem in this regard is that the father has already had an opportunity to demonstrate that he can comply with Court orders and that he can accept responsibility for his own actions. Comprehensive orders were made in September 2003. The father was made to understand at that stage that he was to serve an apprenticeship (as it were) before he could hope to move on to unsupervised or extended periods of contact. He did not satisfactorily complete his apprenticeship. As a result, the issues that confronted the mother (and the court) during the 2005 trial were almost identical to those that existed immediately prior to the 2003 trial.
I have already indicated that a party's willingness to adhere to relevant and appropriate Court orders can convert an unacceptable risk into an acceptable risk. In the present case, the Court has no option but to conclude that the father cannot be trusted to adhere to orders that it might be minded to make. To that extent, the usual safeguards that serve to protect the child who might otherwise be at risk (in the broadest sense) cannot be relied upon.
I am very aware that the adversarial system can reach results that are artificial, and that "the truth does not always come out" during the litigation process. I am certainly conscious that the Full Court has described these difficulties as an "imperfection" in the system within which all parties and this court must operate. I am completely satisfied, however, that the findings that I have made in the present case are appropriate and that the result embodied in the orders that are to be made is not "artificial". I have had the opportunity to see and hear the father during the course of two trials, nearly two years apart.
I have also seen and heard the other witnesses, and I have had the very significant benefit of hearing from Dr Kenny, who saw and psychiatrically assessed both the father and the mother. In this case, the truth did come out.
During the course of his closing address, Mr Hoult confirmed that the child representative has significant concerns regarding ongoing contact between the father and J. The child representative’s concerns include the father's attitude to Court orders, his attitude towards taking responsibility for his own actions, his attitude to the mother, his inability to produce drug screens involving results which were other than controversial in some way, the enormous financial cost to the mother of the ongoing proceedings relating to contact, and the father's attitude to the payment of child support. The child representative submitted, however, that J does have a relationship with the father, and although it is open to the court to make the orders sought by the mother, some attempt should be made to allow J to maintain that relationship. In other words, the child representative is of the view that the father should be given one last chance.
For the reasons set out in this judgment, I find myself unable to accept the child representative's submission. To do so, I find, would be unfair to the mother and J (and, indeed, to the father). The evidence does not allow me to conclude that the father is ever going to change, and to make the orders sought by the child representative is to condemn the parties (and J) to at least one further round of proceedings. The mother is at the end of her tether[15] – financially and emotionally – and I can see no reason why I should simply defer the inevitable. To do so would amount to consciously and unacceptably risking the mother's emotional and psychological health, and, either directly or through her, J’s emotional and psychological health.
[15] See, in particular, paragraphs 184 to 192 above; cf Dr Kenny’s comment in paragraph 132 above – which I have noted
Most of what I have written in these Reasons relates directly to the parties’ capacity to provide for J’s needs. I find that the mother has the capacity to provide for J’s needs – including her emotional and intellectual needs. I would add that the mother's financial capacity to provide for J was not in issue, although I note that she has borne an extraordinary burden in respect of legal fees associated with the ongoing proceedings. Something in the order of 50 percent of her income has had to be set aside to meet legal fees.
In the light of the findings set out elsewhere in these Reasons, I find that the father lacks the capacity to provide for J’s needs – other than in a physical or supervisory sense. I note that even the father's mother did not support a move from supervised to unsupervised contact. Unfortunately, the father’s attitude can best be described by reference to his response to the questioning regarding his willingness to cease using marijuana (or, at least, to cease attending premises where he might be expected to become a "passive smoker" of marijuana). In essence, the father said: "What’s in it for me?”
In my opinion, there remains a need to protect J from any form of harm that may be caused to her from being subjected or exposed to the father's (at times) inappropriate or irresponsible behaviour. I refer, in this regard, to the father's drug use, to his anger and volatility, and to his determination to broadcast his "concerns".
I am well aware, of course, that the evidence before me does not suggest that J has ever come to serious harm (of any sort) whilst she has been in the father's care. It does appear, however, that she has been upset and confused by some of the comments that he has made from time to time. The fact that J has never come to serious harm lost in the father's care is a factor that I take into account, and weigh in the balance, and it is certainly not without significance. But, s.68(2)(g) speaks of a "need to protect" the child from certain behaviours. In my view, the fact that such behaviours have not caused harm to J in the past does not mean that they could not harm her in the future.
I am satisfied that the mother has demonstrated an appropriate attitude to J, and to the responsibilities and duties of parenthood, at all relevant times. I accept that the mother's primary motivation is the promotion of J’s best interests.
I find that the father has not demonstrated an appropriate attitude to J, and to the responsibilities and duties of parenthood. I accept, however, that for him to pursue the current proceedings demonstrates that he has considerable determination, and that he is prepared to submit himself to criticism, strain and anxiety in order to maintain his relationship with J. Regrettably, and as I have indicated above, the father will not change, and the court can have no confidence that he will eventually learn to demonstrate an appropriate attitude to the responsibilities and duties of parenthood on a consistent basis for an extended period into the future.
I do not doubt that both parties love J. The reality is, however, that such a sentiment is often a "given" in residence and contact cases. The mother fully understands her role as J’s parent, and she has confronted and overcome problems that she has experienced in her life. As I have observed elsewhere in these Reasons, I am not satisfied that the father has done enough (indeed, anywhere near enough) to confront and overcome the problems that he has experienced and continues to experience in his life. That is of particular concern when regard is had to the fact that this matter came to trial in September 2003 and the father had every opportunity to demonstrate that his attitude and behaviour had changed. In my opinion, the father has not yet reached (and perhaps will never reach) the point of understanding that his inability to recognise, confront and deal with his own problems is likely to impact adversely on his capacity to care for and parent J.
I am not satisfied that the father can be relied upon to comply with orders that the court might be minded to make. He has demonstrated that he has the capacity to ignore orders, often as a result of caprice. This is clearly a factor which favours the mother's case.
Section 68F(2)(k) requires the court to consider "... 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". Although it is awkwardly expressed, the intention of the provision is clear. The evidence is to the effect that the mother has spent approximately $60,000 in relation to these proceedings. The evidence is that the mother is at the end of her tether, both emotionally and financially. Further, the evidence is that the father is not going to change, and that any order which perpetuates contact between the father and J will necessarily and inevitably lead to further proceedings, because the court can have no confidence that the father will comply with all aspects of its orders. In the unusual circumstances of this case, it is clearly preferable – and in J’s best interests – to make orders that are least likely to lead to the institution of further proceedings in relation to J. Those orders are contained in the minute handed up on behalf of the mother.
I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to in B & B: Family Law Reform Act (1975) (see above), and the other legislative provisions or authorities referred to in these reasons. I have imposed no legal or other onus on any party, and have applied no presumptions of any sort. I have deduced from the evidence, and from my assessment of the parties and the witnesses, the essence of the competing proposals – and I decide, having considered all the factors that I consider to be relevant, that the mother's proposals are the most likely to advance J’s best interests (which comprise the paramount consideration in these proceedings).
I am well aware that the orders which I propose will also a status quo that has adhered for a lengthy period of time. In the circumstances of the present case, however, and for the Reasons which I have given, any changes that the orders may require are necessary and in J’s best interests.
Orders
I propose to make the following orders:
1.The orders made by this court on 11 September 2003 be discharged.
2.The child C J A born 11 April 2002 live with the mother, and she have sole responsibility for the long-term and day-to-day care, welfare and development of the said child.
3.All extant applications otherwise be dismissed and the matter be removed from the list of cases awaiting trial.
I certify that the preceding two hundred and eighty-one (281) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Suzette De La Motte
Date: 21 February 2006
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