PST & CPR - [2006] FMCAfam 36

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading PST & CPR

Details

AGLC: PST & CPR [2006] FMCAfam 36
Case: [2006] FMCAfam 36
Decision Date: 21 February 2006

CaseChat Overview and Summary

In the Family Court of Australia, the case of PST & CPR involved a dispute between the parents of a child named J regarding parenting arrangements and contact. Dr. Kenny, a clinical psychologist, provided expert evidence in the proceedings. The legal issues centred on the suitability of the father, who exhibited personality dysfunction and lacked impulse control, for unsupervised contact with the child. The Court needed to determine the appropriate level of contact between the father and the child, considering the child's best interests and the father's demonstrated behaviour.

The Court considered Dr. Kenny's expert opinion, which highlighted the father's personality dysfunction and the risk it posed to the child's relationship with the mother. Dr. Kenny confirmed that underlying personality problems of this nature cannot be effectively treated and that the father would likely require supervised contact indefinitely. The psychologist emphasised the importance of the father's compliance with court orders and his ability to demonstrate impulse control. The Court accepted Dr. Kenny's assessment that the father's past behaviour did not indicate a likelihood of change, and that unsupervised contact would be detrimental to the child's development.

Based on Dr. Kenny's evidence and the Court's findings, the Court concluded that the father's personality dysfunction posed a significant risk to the child's welfare. The Court determined that the child should live with the mother, who was deemed a competent and well-intentioned parent. The Court also discharged previous orders and dismissed all other applications, removing the matter from the list of cases awaiting trial. The Court's decision underscored the paramount importance of the child's best interests in determining parenting arrangements.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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); andn)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.

Ratio Decidendi

Legal Principle Established

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); andn)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.