RAWSON & GLYNN
[2019] FCCA 2048
•6 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAWSON & GLYNN | [2019] FCCA 2048 |
| Catchwords: FAMILY LAW – Parenting – where concerns about the Father’s mental health and the risk of relapse into drug use – where the period of time since the Father last saw the Child is so long that the Child will not know him – where recognition contact order preceded by therapy. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS RAWSON |
| Respondent: | MR GLYNN |
| File Number: | WOC 548 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 29 - 31 May 2019 |
| Date of Last Submission: | 31 May 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 6 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blank | |
Solicitors for the Applicant: | Williamson Isabella Lawyers & Public Notaries | |
Counsel for the Respondent: | Mr Alexander | |
Solicitors for the Respondent: | Hennikers Solicitors | |
| Counsel for the Independent Children's Lawyer: | Ms Reynolds | |
| Solicitors for the Independent Children's Lawyer: | DGB Lawyers | |
ORDERS
All previous parenting Orders for the Child [X] born … 2014 (hereinafter referred to as “the Child”) shall be hereby discharged.
The Applicant Mother shall have sole parental responsibility for the Child.
The Child shall live with the Applicant Mother.
The Applicant Mother shall forthwith do all things necessary to ensure that the Applicant Mother and the Child engage with Uniting Counselling and Mediation Town A, B Street, Town A, (hereinafter referred to as “Uniting”) for the purpose of Uniting providing the Applicant Mother and the Child with therapeutic support with respect to:
(a)What information regarding the Respondent Father should be provided to the Child;
(b)When information regarding the Respondent Father should be provided to the Child; and
(c)How information regarding the Respondent Father should be provided to the Child.
The Respondent Father shall forthwith do all things necessary to ensure that he engages with Uniting for the purpose of Uniting providing the Respondent Father and the Child with therapeutic support with respect to the Child’s re-introduction to the Respondent Father.
For the purpose of engaging with Uniting each parent shall do all things necessary to:
(a)attend upon Uniting at such frequency as is recommended by Uniting Care;
(b)ensure that the Child attends upon Uniting at such frequency as is recommended by Uniting; and
(c)follow all reasonable recommendations made by Uniting.
The Respondent Father shall be solely responsible for the payment of all fees payable to Uniting with respect to the parents and the Child engaging with Uniting in compliance with these Orders.
Within fourteen (14) days after the date of these Orders, the parents shall contact CatholicCare Children’s Contact Service Town A (hereinafter referred to as “the contact service”) or such other a professional supervised contact service agreed between the parents within seven (7) days after the date of these Orders and do all acts and things necessary to complete all necessary intake procedures to enable supervised time to occur through the contact service.
Following the parents and the Child engaging with Uniting in accordance with Orders 4, 5 and 6 hereof for a minimum period of two (2) months each party shall do all things necessary to ensure that the Child commences spending time with the Respondent Father as early as possible for two (2) hours on four (4) occasions in each calendar year with such time to be supervised by the contact service.
Unless otherwise agreed in writing between the parents the time the Respondent Father is to spend with the Child in accordance with these Orders shall occur:
(a)on the first Saturday of each school holiday period;
(b)onsite at the contact service unless otherwise recommended by the contact service and agreed to by the Applicant Mother.
The Respondent Father shall be solely responsible for the payment of all fees payable to the contact service with respect to the Respondent Father spending time with the Child, whether those fees relate to assessment of the parents and the Child, the orientation of the Child, or the actual time.
Whilst ever the Respondent Father is spending time with the Child in accordance with these Orders the Respondent Father shall be permitted to send cards and/or gifts to the Child at a frequency of not more than once every three (3) months in addition to any cards /or gifts the Respondent Father wishes to send the Child at Christmas and on the Child’s birthday.
For the purpose of Order 12 hereof, the Respondent Father shall send such cards and/or gifts to the child at an address nominated by the Applicant Mother.
The Applicant Mother shall ensure that the Child is provided with, and at liberty to retain, the items sent to the child by the Respondent Father.
Whilst ever the Respondent Father is spending time with the Child in accordance with these Orders the Applicant Mother shall provide the Respondent Father with a current photo of the Child at least once every six (6) months with the photo to be delivered to the contact service.
The Independent Children’s Lawyer shall have leave to provide a photocopy of the Family Reports prepared by Dr C dated 17 June 2015 and 4 September 2019 in addition to the final parenting Orders made by this Court to:
(a)the contact service; and
(b)Uniting.
Up to 31 December 2021 or up to any suspension of the Respondent Father’s time with the Child in accordance with Order 19 or 23 hereof the Respondent Father shall submit to supervised urinalysis (under supervision and chain of custody) within forty eight (48) hours of the Applicant Mother's Solicitor forwarding a request to the Respondent Father to do so directly or to the Respondent Father’s Solicitor by letter, fax, text message or e-mail, with such urinalysis testing to be conducted in accordance with the Australia/New Zealand Standard 4308:2008: Procedure for the Collection, Detection and Quantitation of Drugs of Abuse in Urine and the Respondent Father or any solicitor acting on behalf of the Respondent Father shall provide the results for the urinalysis testing to the Applicant Mother or to any solicitor acting on behalf of the Applicant Mother within forty eight (48) hours of the Respondent Father receiving such results.
The Respondent Father shall not be required to undertake supervised urinalysis in accordance with the preceding Order on more than one (1) occasion in each four (4) week period.
If the Respondent Father does not comply with a request to undertake urinalysis made pursuant to Orders 17 and 18 hereof or complies with such a request but produces a positive result to illicit drugs or drugs which are not validly prescribed to the Respondent Father Order 9 hereof shall be immediately suspended.
For a period of two (2) years from the date of this Order or up to any suspension of the Respondent Father’s time with the Child in accordance with Order 19 or 23 hereof the Respondent Father shall submit to hair follicle testing within fourteen (14) days of the Applicant Mother or the Applicant Mother's Solicitor forwarding a request to the Respondent Father to do so directly or to the Respondent Father’s Solicitor by letter, fax, text message or e-mail, with such testing to be conducted with TDDA or such other drug detection agency nominated by the Applicant Mother and the Respondent Father or any solicitor acting on behalf of the Respondent Father shall provide the results for the hair follicle testing submitted to by the Respondent Father to the Applicant Mother or the Applicant Mother’s Solicitor within forty–eight (48) hours of the Respondent Father receiving such results.
The Respondent Father shall not be required to undertake hair follicle testing in accordance with these Orders on more than two (2) occasion in the period of two (2) years from the date of this Order.
The Respondent Father shall be solely responsible for the total costs incurred for the hair follicle testing required by these Orders.
If the Respondent Father does not submit to hair follicle testing in accordance with these Orders or submits to the hair follicle testing and there is a positive result for illicit drugs or drugs which are not validly prescribed to the Respondent Father Order 9 hereof shall be immediately suspended.
Each parent shall be restrained by injunction from speaking or permitting any other person to speak to or about the other parent or any member of their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Child.
The Respondent Father shall be restrained by injunction pursuant to section 68B of the Family Law Act 1975 (hereinafter referred to as “the Act”) from:
(a)Approaching, communicating with, telephoning, contacting or attempting to contact, whether directly or indirectly, the Applicant Mother or the Child except as provided for in these Orders;
(b)Approaching or coming within one hundred (100) metres of any place where the Applicant Mother or Child might reside from time to time, attend employment, or attend for education or child-care purposes; and
(c)Publishing any images, videos or other media containing images or sounds related to the Applicant Mother or the Child on social media, the internet or otherwise.
Pursuant to section 68C of the Act if a police officer believes on reasonable grounds that the Respondent Father against the injunctions in Order 25 hereof are directed, has breached one or more of those injunctions causing or threatening to cause bodily harm to the Applicant Mother or the Child or harassing, molesting or stalking the Applicant Mother or the Child, that police officer may arrest the Respondent Father without a warrant.
Pursuant to section 65Y of the Act the Applicant Mother shall be permitted to travel outside the Commonwealth of Australia with the Child from time to time.
Pursuant to section 11 of the Australian Passports Act 2005 (Cth) the Applicant Mother shall be at liberty to apply for a passport and/or renewal of passport for the Child without the consent of the Respondent Father being obtained.
IT IS NOTED that publication of this judgment under the pseudonym Rawson & Glynn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 548 of 2013
| MS RAWSON |
Applicant
And
| MR GLYNN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X]. [X] was born … 2012, and will thus be 7 years old by the time that these Reasons for Judgment are delivered. The Court must decide whether, and if so in what circumstances, [X] should spend time and communicate with his father.
Background
Unless indicated to the contrary, the following represents findings of the Court.
[X]’s mother is the Applicant in this case. She is 25 years old. [X]’s father is the Respondent. He is 27 years old. They both live in the Region S of New South Wales. The Father describes himself as a professional, and the Mother as undertaking home duties. The parents commenced a relationship in 2011, commenced cohabitation the next year after [X] was born, and then separated on a final basis early in 2013. [X] has been living with his mother since then. After [X] was born, he had limited and supervised contact with his father. This progressed to unsupervised, but then reverted to supervised contact. The last time that [X] spent time with his father was in February 2014.
The relationship between the parents was a tumultuous one. Both parents have had difficult lives, particularly the Father.
On 24 March 2013, there was an incident at Suburb D KFC. It seems the Father sought to enter the Mother’s car whilst she was waiting in a queue in the drive-through. The Mother tried to reverse the car. The Father found himself on the boot of the car. She tried to exit, but felt trapped by the Father’s car. In any event, the incident resulted in both a provisional and then a final apprehended violence order against the Father.
The present proceedings commenced in June 2013. Initially, the Mother proposed supervised time. In the Father’s response, he sought unsupervised time. The first substantive orders made in this Court were on 31 January 2014. [X] was to remain living with his mother, but to spend time the Father during daytimes, at the home of the maternal grandparents, and supervised by one of the maternal grandparents. The parents were to complete the intake for Catholic Care Contact Service in Town A. Thereafter, supervised time between the Father and [X] would occur, as the contact centre could arrange. It seems that the arrangement for supervised contact broke down insofar as it was dependent on the maternal grandparents providing supervision. No alternative supervisor could be agreed. Whilst the Mother appears to have completed her intake at Catholic Care, for some reason not entirely clear to the Court, the Father did not.
All attempts by the parents, their legal representatives, and the Independent Children’s Lawyer to negotiate the resumption of supervised time failed.
The first Hearing date was listed for 12 May 2016. The Hearing had to be vacated, as the Father was in jail on remand. The next Hearing was allocated for 6 November 2017, but was again vacated, mainly attributable the receipt of and the contents of Dr C's Second Report.
A number of events had occurred between the parents and between the Father and the maternal grandparents which ultimately led to an order being made in December 2017, restraining the Father by injunction pursuant to section 68B of the Family Law Act1975 (Cth) (“the Act”) of approaching or communicating with the Child or the Mother.
The matter finally came before the Court in May 2019. In many cases, and in reality probably even this case, the extensive delay in the matter coming on for Hearing is clearly unacceptable. It must be noted, however, that the Father had ample opportunity to address many of the issues that were raised in Dr C’s reports and, indeed, he had done so, at least in part, by the time of the Final Hearing.
Competing proposals
At the Final Hearing, the Mother’s proposal was that she have sole parental responsibility and that [X] live with her. She proposed that [X] have no time with and no communication with the Father, and that he be restrained by way of an injunction under section 68B of the Act from approaching or communicating with him.
The Father’s proposal was also that [X] live with his mother and that she have sole parental responsibility. The Father proposed that he have time with [X] on the following basis. Initially, in the Father’s case outline document filed 21 May 2019, he proposed final orders that his time with [X] be supervised by his father (the paternal grandfather) and/or the paternal grandfather’s partner. His time would occur from 12noon to 2:00pm each alternate Sunday for six months, and then from 12noon to 4:00pm for a further three months, and then 10:00am to 3:00pm for a period of three months, and thereafter each alternate weekend from 4:00pm Saturday until 4:00pm Sunday. It is important to note that in this proposal, even the Father acknowledged that his time would need to be supervised by his nominated supervisors.
By the time the Hearing commenced, however, the Father’s proposal had changed. He foreshadowed to the Court through his Counsel that he would, in fact, be seeking interim orders and not final orders. [X] would continue to live with his mother, who would have sole parental responsibility. The Father’s time would continue to be supervised by the paternal grandfather and his partner. The time would be each alternate Sunday between 10:00am and 1:00pm for three months, but on the basis that [X] would be spending time with the paternal grandfather and his partner with a view to getting to know them before the Father was introduced at the next stage. After three months, the Father would commence spending time with [X] between 10:00am and 1:00pm, each third Sunday at an agreed location, and failing agreement at the residence of the paternal grandfather.
By the time of closing submissions, however, the Father’s proposal had changed once again. Again, interim orders were proposed. [X] would live with his mother, who would have sole parental responsibility. [X] would spend three months spending time with the paternal grandfather and his partner each alternate Sunday between 10:00am and 1:00pm. Unless otherwise agreed, this would take place at their home.
Each of the orders proposed by the Father incorporated provisions for drug testing and CDT testing.
It should be noted the Court does not criticise the Father for making a number of proposals – a number of proposals which seemed to evolve, having regard to the evidence before the Court, and a realistic appraisal of that evidence. It is clear from the Father’s proposal that he acknowledged the challenges confronting [X], the Mother, and indeed the Court, in seeking to find an order in [X]’s best interest, which involved re-introduction to a total stranger in circumstances where the evidence, particularly the expert evidence, pointed clearly to unresolved risks of harm associated with unsupervised contact. Thus, whilst the Father might not have explicitly conceded the nature and extent of the risk issues identified by both the Mother and the Independent Children’s Lawyer, the fact of the matter is that he had, in reality, and no doubt assisted by good advice, a realistic self-appraisal of the risks to [X] in the unfortunate circumstances of this case.
Whilst the Father’s proposal for interim orders was understandable, it is probably of no surprise to him and those advising him that both the Mother and Independent Children’s Lawyer opposed the proposal, and the Court expressed concern about the proposal. [X]’s perspective, the litigation relating to him has been extant for all but one year of his life. Moreover, as became quite clear during cross-examination, it was not possible to sheet home the delay to the Mother. Indeed, whilst there were certainly systematic issues (associated with the Court’s workload) preventing the matter from coming on for Hearing earlier, a substantial part of the delay was attributable to the Father and, ultimately, he may well have benefited from the same. As will become apparent below, it is this Court’s view that the finalisation of these proceedings was ultimately in the best interests of [X].
The Independent Children’s Lawyer’s proposal was that the Mother have sole parental responsibility and [X] live with her. However, [X] would spend time with his father, following a period of engagement with United Counselling and Mediation. Eventually, [X] would spend time with his father for two hours four times each year to be supervised by the Supervised Contact Centre. In reality this was a supervised, recognition contact order, as postulated during the evidence of Dr C, the Single Joint Expert in this case.
The Evidence
In the Mother’s case, she relied on the following documents:
a)The Amended Initiating Application sworn and filed 25 January 2019;
b)Affidavit of Ms Rawson sworn 25 January 2019 and filed 29 January 2019; and
c)Affidavit of Ms E sworn and filed 25 January 2019.
In the Father’s case, he relied on the following documents;
a)Affidavit of Mr Glynn sworn and filed 21 May 2019;
b)Affidavit of Mr Glynn filed 25 January 2019;
c)Affidavit of Mr Glynn filed 19 October 2018;
d)Affidavit of Mr Glynn filed 11 October 2018;
e)Affidavit of Mr Glynn filed 4 December 2015;
f)Affidavit of Mr Glynn filed 9 July 2014;
g)Affidavit of Mr Glynn filed 26 November 2013;
h)Affidavit of Mr Glynn filed 26 September 2013;
i)Affidavit of Mr R filed 27 February 2018; and
j)Affidavit of Ms F filed 27 February 2018.
The following documents were tendered as evidence during the course of the proceedings;
a)Child Dispute Memorandum dated 11 November 2013;
b)First Report of Dr C dated 18 June 2015;
c)Second Report of Dr C dated 11 September 2017;
d)Documents produced pursuant to subpoena on NSW Police;
e)Documents produced pursuant to subpoena on Rehabilitation Services;
f)Documents produced pursuant to subpoena on Dr G;
g)Documents produced pursuant to subpoena on Mental Health Service;
h)Documents produced pursuant to subpoena on Centre Health Suburb H;
i)Documents produced pursuant to subpoena on the Department of Justice;
j)Documents produced pursuant to subpoena on Town K Hospital;
k)Correspondence dated 23 April 2019.
The issues
The Court had to decide whether, and if so under what conditions, [X] should spend time with his father. The focus, and thus the issue in this case, was in reality about whether it was possible for [X] to have the sort of meaningful relationship with his father that is contemplated under the Family Law Act, having regard to the risk of harm issues associated in having that relationship, which risk of harm seems to have been accepted even in the Fathers’ case. These Reasons for Judgment will, therefore, focus on the above issues.
The applicable law
The applicable law is found in Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring 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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly 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; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The cases summarised
The Mother’s case for no contact and communication emphasised the continued existence of risk for harm for [X], if he were to spend time with his father, as well as the formidable challenges for [X] involved in reintroducing his father into his life. On her behalf it was submitted that the evidence suggesting that the Father had failed to do all that he possibly could to spend time with [X] at the supervised contact centre reflected a lack of commitment on his part and thus, in effect, he was the author of the predicament that now exists for [X] being reintroduced into his life. The Mother’s case urged the Court not to accept the fundamental tenet of the Father’s case, i.e., that he was now a changed man and had turned away from a life of violence, criminality, drugs and alcohol. She was not convinced that he had changed. In any event, and consistent with Dr C’s evidence, on her behalf it was contended that the risk of relapse into drug use was a real one. In any event, the Mother’s case was that irrespective of the present state of the Fathers’ substance abuse and criminality, Dr C’s principal concern was the Father’s underlying personality disorder in respect of which the Father did not appear to have satisfied the Court.
The Mother was, moreover, deeply sceptical about the Father’s contention that he had changed. There was scant evidence, it was submitted on her behalf, of him taking responsibility for past behaviour. She submits that the Father was, in effect, asking for a third chance. The blueprint for change was set out in the First Report from Dr C. By the time of the Second Report, the Father had done little or nothing to assist himself and, indeed, appears to have deteriorated. The Second Report provided him with another chance, which he had not taken advantage of, as is reflected in his own proposal for interim orders.
Finally, the Mother contended that the Independent Children’s Lawyer’s proposal for supervised recognition contact placed the burden on the Mother, and [X], all in a context where, the Mother submitted, the Father’s stability was not assured.
The Father’s case was that, by the time of the Final Hearing, he had established a clear track record of engagement with people and services who were there to assist him, including the paternal grandfather, the Father’s counsellor and psychiatrist. His case emphasised that he was a different person, who coped with the pressure and anxiety of the proceedings, and was managing to hold down a new job. The Father acknowledged that there was a risk of relapse, but his case emphasised nearly three years of drug abstinence. His ownership of responsibility for his past actions was reflected in, for example, his engagement with his psychologist Dr G.
Despite this optimistic view of both the past, the present, and the future, the Court cannot help but note that the Father’s own proposal for interim orders merely recognised the difficulty that the Court would experience in finding a time when the Father would have unsupervised time with his son. The problem with recognition contact, the Father’s case emphasised, was that, in effect, every time [X] would be reunited with his father, it would be like meeting his father again for the first time. The Father’s Counsel contended that this could not possibly be the meaningful relationship that was considered by the Act. More would be needed. By contrast, the Mother’s proposal raised the spectre of further psychological harm to [X], through the absence of his father in his life.
The Father’s case frankly acknowledged that probably nothing he could say or do would reassure the Mother, or the maternal grandmother, that past risks were no longer salient. This reflected poorly on the Mother, however, and not on the Father.
The Independent Children’s Lawyer’s case emphasised that [X] was doing well in his mother’s care and that the Court would be very cautious about unnecessarily disrupting an arrangement that has worked so well in his life to date. Whilst it was important for the Court to structure an arrangement that minimised the potentially adverse impact on [X] of the absence of his father in his growing years, and whilst there was some scope for the Court to be reassured somewhat about the asserted change in the Father’s life, nonetheless the Court would be appropriately cautious given the reservations of Dr C, and the risk of relapse in the Father’s life.
Even though the Court could be reassured that the Father had changed, at least in part, Counsel for the Independent Children’s Lawyer submitted that the evidence indicated there were lingering remnants of paranoia, unaddressed borderline personality disorder issues, and a risk of relapse into drug abuse with consequent psychosis. This meant that if any time was contemplated with the father at all, it would need to be supervised.
In short, the risk had not evaporated. The evidence would indicate that the Father was not necessarily committed to engagement with the services to assist him.
The Independent Children’s Lawyer’s case frankly recognised, however, that even with a proposal for recognition contact both the Mother and [X] would need to participate in therapy, and the Mother would need to be supported with the idea of ongoing contact between [X] and his father. The Independent Children’s Lawyer was satisfied that whilst the Mother could probably cope with such an order, it would impact on her parenting, she would feel anxious, and the risk was that this would be transmitted to [X]. Thus, the Independent Children’s Lawyer’s case emphasised the need for therapy for her.
The expert evidence of Dr C
Dr C was the Single Joint Expert (child and forensic psychiatrist) appointed in this matter. He provided two Reports dated 17 June 2015 and 7 September 2017. Dr C also gave oral evidence at the Hearing.
The First Report was based on interviews that took place on 31 March 2015. For present purposes, the relevant issue is the presentation of the Father, Dr C’s professional opinion about the Father, and the recommendations made in relation to the Child, [X].
In the First Report at lines 474 to 484, Dr C reports on the outcome of his mental state examination of the Father, in the following terms:
Mr Glynn was a casually dressed man with jeans and t-shirt. He had tattoos on his arms. He was wearing his cap tightly over his eyes and he had an eye brow piercing. His speech was normal in tone and volume. His thoughts were logical and sequential. There was no abnormality of perception. His affect was anxious initially, he was speaking quickly but then his pace of speech became normal. There was no cognitive disturbance. His thinking was that he felt that he was poorly understood and that he did want to have a relationship with his child but felt that people were treating him unfairly. He had a very strong sense that he felt he was very poorly misunderstood and poorly treated by others.
Dr C then set out matters of personal history, referring to the Father’s difficult home life, struggles at school, experience of family dysfunction, as well as multiple traumatic events in his life. He also considered the Father’s past medical, psychiatric and forensic history.
Dr C’s assessment of the mental health of the Father commences at line 891 of the First Report. For present purposes the relevant section is found at lines 926 to 942:
From a personality perspective with difficulties regarding abandonment fears and low self-esteem, this has contributed to a dependency on drugs in order to help him manage his underlying stress and antisocial activities and difficulties being able to manage interpersonal interactions. I believe that he has more borderline personality features than an antisocial features but there are also dependent features. The borderline features indicate feelings of abandonment, impulsivity such as his driving, relationship difficulties, mood variations, anger, and poor sense of identity. Overall I would see his functioning at perhaps a 6 year old level emotionally perhaps in line with when he lost his father in his life. I note that he did see a mental health professional at the age of 15 for 2 years because of his ongoing adolescent difficulties and interpersonal relations with his mother. He also described suicidal feelings from the age of 13 to 16 and also a year ago. These features are all suggestive of borderline personality disorder with some antisocial features where he has violated the rights of others and threatened harm to others.
In short, Dr C was of the professional opinion that the Father suffered Borderline Personality Disorder with some anti-social features.
Dr C explored a number of possible outcomes including living with the Mother, but having no contact with the Father; having regular contact with the Father and, a shared care arrangement. He ultimately recommended, however, that [X] continue to remain in his mother’s care, but that regular substantial contact with his father was not a viable option. Dr C opined:
There is too much risk of violence and too many threats. I would therefore recommend that there be supervised recognition contact. This could be perhaps four times per year for two hours at a contact centre. (Lines 1044 to 1048)
Importantly, he recommended that the Father undertake drug and alcohol counselling, indeed, rehabilitation. The Father should continue with psychiatric care, and would benefit from dialectal behaviour therapy, and cognitive behaviour therapy. The Father would also benefit from continuing with his vocational development.
Commencing from line 1069, Dr C considered the future for the Father, in the following terms:
Should the father be able to undergo the above treatment, undergo rehabilitation, engage well with psychological treatment, undergo extensive DBT, CBT treatment, drug rehabilitation, become drug free and also attend a perpetrator of violence course then it is possible that he may make sufficient gains to potentially have a more substantial role in [X]’s life. However, should there be repeated threats either verbally or through messages or digital media, this would be a very worrying concern and the chance of increasing contact is unlikely. I therefore would recommend that perhaps a review in 2 years to see if Mr Glynn has been able to implement and cooperate with the necessary requirements to show that he can management some rehabilitation and continue with his personal development to be able to have a significant 1080 ability to offer his child some input.
Dr C's Second Report contains an executive summary at lines 3 to 11, in the following terms:
I believe the father has severe mental health problems and does not have insight into his condition. He in my view probably suffers from paranoid schizophrenia. The father has a history of violence and instability which suggests he is an unacceptable risk of harm to [X] and to [X]’s mother. The father has not received adequate treatment or obtained adequate stability to be in a position to have any input into his [X]’s life. His mental illness is unpredictable and his drug use is unpredictable. The prognosis for his mental health is poor. Therefore I believe no contact in any form should occur between the father and the child.
Dr C had further evidence before him, at the time of formulating his Second Report. For example, the Father had attended Rehabilitation Service. The Father had a mental health admission to the Region J District Hospital in July 2015. Both sets of records were available to Dr C.
The mental state examination commences at line 232 of the Report. In order to better understand Dr C’s professional opinion that the Father suffered from paranoid schizophrenia, it is useful to set out the mental state examination in full. (Lines 233 to 295)
Mr Glynn presented as friendly man of large medium build who was wearing a warm top and jeans. He was solid. He had slightly odd speech and seemed quite unsophisticated in his manner. Mr Glynn’s speech was normal in tone and volume. There was no abnormality of perception. He denied any hallucinations visually or auditory. Mr Glynn’s affect was happy and slightly odd although there was some reactivity. There seemed to be slight inappropriateness at times as he was describing his mystical and spiritual beliefs. Mr Glynn’s cognitive function appeared normal. Mr Glynn’s thoughts were logical in form. In terms of Mr Glynn’s thought content Mr Glynn denied that his thoughts could be controlled or that he had thought insertion or could read minds or have through broadcasting.
I note that Mr Glynn reported previously when he was unwell he believed that he was getting messages from the radio and the television and that there were special powers. He denied any thought control feelings. There were no auditory hallucinations. In terms of his suspiciousness. He did believe that there were some special qualities. He mentioned that he had forces coming in one hand and going out the other hand. He described it as, “meditation energy.” There were some bizarre ideas. He described a third eye in the middle of his forehead. He said it was like being a Buddhist monk. Mr Glynn explained that everybody has a third eye in the middle of their forehead between their eyes. The positive energy is received in the left hand and then is passed to others in the right hand. It’s a healing positive energy. He uses this positive energy to help him cope with stress such as when he’s missing his son or if he’s feeling frustrated and annoyed. He also uses it to cope with bad information such as if bad things are written on Facebook about him.
In 2015 Mr Glynn believed that he was poisoned. I believe that this is a sign of some paranoid delusional beliefs. He believed that he was poisoned and perhaps somebody had put something in a drink. He was in a coma for 4 days, he claimed. There were chest pains and throat pains. The doctor wasn’t sure what the poison was however, he claimed that he had been poisoned. In addition, he believes that he’s probably been poisoned again. “I don’t leave drinks laying around.” I asked him if he feared that somebody could put something in his drink and he acknowledged that this was his fear. Cleary he has a high degree of suspicion and paranoid thinking. “Someone could slip something into my drink. You never know.”
Mr Glynn was trying to be cautious not to sound too adamant however, it was quite clear that there was a paranoid delusional system. He talked further about meditation energy and the third eye. He suggested that I should google and look at the third eye. Mr Glynn described how there were 7 special points on the body called Chakras. He then produced a small bag with crystals. He pulled out 9 or 10 rocks and he gave them all a name and described how they gave strength, balance, protection, reduced anxiety and provided spiritual energy and could help reduce arguments and provide positive vibrations. He denied that he had any special powers but he did describe how the energy from these rocks and the Chakras were healing for him.
Mr Glynn explained that he was on bail and that he was in the company of his mother and or father. He claimed that he was in the company of his mother or father for his protection. I asked about Rehabilitation. He went to Rehabilitation in 2015. However, he found the people confronting and they yelled at him and he wasn’t comfortable there and so he left. He did see a psychiatrist Dr L but this treatment has now ceased. He then digressed and talked about how the maternal grandmother was preventing him from seeing [X]. He stated that he wanted to see [X] 4 times a year as I had recommended in my previous report even if it’s supervised.
Mr Glynn stated that he wanted to have regular contact with [X]. He’d like to see him every fortnight for visits and then to progress to overnight and to be like a father figure to [X].
In discussing the Father’s past medical, psychiatric and forensic history, Dr C observed that the Father denied that he had a medical illness, and did not believe that he was psychotic. However, he did believe that he had been poisoned and that he was now well and was healing himself using spiritual energy. At lines 339 to 364 Dr C's Report records as follows:
I asked again about his interest. He began to explain in elaborate detail how he was very involved in energy and spirituality and how the energy could move from one hand to the other and how it could help him and how it could also help others.
Mr Glynn has now been drug free for the past few months. The last test which showed drug free urine was on 4/4/17. He explained how he began using marijuana under the influence of a girlfriend in 2007.
Mr Glynn did explain how he had been spied upon through Facebook and that there were false statements made about him. He explained how he’d been poisoned two years ago in 2015 and how he couldn’t eat or drink and how he came close to death because he believed his drink had been poisoned. He described in great detail the third eye and how important this was for spiritual energy and spiritual awakening. “The third eye gives spiritual awakening as the eye opens and there’s then nothing to worry about and it’s very positive.” He believed that there was a higher God as he then named all of the crystals in his bag.
Mr Glynn explained that he had a difficult life. “I had a tough life.” Mr Glynn was trying to overcome the negativity through using his higher spiritual calling and energy.
It was my view that his description of spirituality, the third eye and being poisoned were all part of a delusional system and that was, I believe evidence of a psychosis.
Dr C discusses the Father’s mental health at lines 601 to 645:
Previously, I assessed Mr Glynn as having a probable borderline personality disorder with some dependent and antisocial features. It is worth noting in a letter from the psychiatrist Dr L on 8/4/12 to Dr M that he wondered if Mr Glynn might have Bipolar Disorder. He had ADHD and uncontrollable disrupted behaviour and was under a child psychiatrist from the age of 7 and had an average of 2 hours per day of schooling between 3pm and 5pm. He used marijuana from the age of 14 and continued with alcohol and various stimulants from 14 to 17. He was disqualified from driving until 2018 and there were break-and-enter behaviours in his teenage years. He was raided by Police in the context of a 12 gage single barrel shotgun and using marijuana.
Now on further assessment it’s quite clear that he has a significant psychotic illness and the he is extremely unwell and has no insight into his psychosis. Mr Glynn has delusional beliefs about crystals and light that he has some role with the Australian Federal Police. Adding to his psychotic illness is the fact that he is unpredictable with his medication and also he is using illicit drugs that are mind-altering such as ice. He’s been to jail and also had admissions to hospital. He explained how he’d been poisoned two years ago in 2015 and how he couldn’t eat or drink and how he came close to death because he believed his drink had been poisoned. He described in great detail the third eye and how important this was for spiritual energy and spiritual awakening. “The third eye gives spiritual awakening as the eye opens and there’s then nothing to worry about and it’s very positive.” He believed that there was a higher God as he then named all of the crystals in his bag.
I was also concerned about the mental health form 1 by Dr N dated 4/7/15 for detaining him as a mentally disordered person on 7/7/15 it was reported that, “He has been head butting walls, tried to set hair/head on fire, ambulance report states he was talking about being possessed and wanting to die as well as fearing transmitters implanted in head.”
In essence, the father has severe mental health problems and has not been able to receive adequate treatment or obtain adequate stability to be in a position to have any input into his child’s life. Associated with his mental health problems has been violence and so his ability to be safe is unpredictable.
The most probable diagnosis is paranoid Schizophrenia with bizarre and paranoid delusions or it is possible he has poorly controlled bipolar affective disorder with drug abuse. The prognosis is poor as he has not been able to undergo adequate treatment and he has poor insight and there is a history of violence.
As will be seen, he concludes that the most probable diagnosis was paranoid schizophrenia with bizarre and paranoid delusions, or possibly poorly controlled bipolar affective disorder with drug use. He found the prognosis to be poor as the Father had not been able to undergo adequate treatment, had poor insight, and there was a history of violence. Dr C believed that the Father did not have capacity to care for [X] due to his severe mental health problems in respect of which he had not been able to receive adequate treatment.
Ultimately, Dr C recommended that there be no contact between the Father and Child, not even supervised recognition contact.
He concludes at lines 723 to 741 as follows:
There does not appear be any clear benefit for [X] in having any contact with the father however, having some knowledge about him and the fact that he has a mental health problem may be of assistance when he is older, but how this is communicated would also depend on how [X] is progressing developmentally. The concept needs to be introduced in a balanced matter of fact way, gradually over years. When [X] develops logical thought from about the age of 7 or 8 he may then understand more. From the age of 12 or 13 [X] may has he develops more sophisticated concepts and abstract thinking be able to understand more about the mother’s decision making.
I don’t believe there should be any contact with regard to letters, texts or email.
Should the father receive intensive rehabilitation and appropriate psychiatric help and achieve an excellent outcome with treatment then this could require a review of whether there should be any contact between the child and the father. However in my view, it does not appear to be a likely outcome that one could predict at this point.
Dr C was cross-examined during the Hearing, at a point after both the Mother and Father had been cross-examined. By this time, of course, he had access to all further evidence filed and any new material before the Court.
Significantly, as a result of this new evidence, Dr C had resiled from his earlier opinion that the Father suffered a form of schizophrenia. Whilst he was of the view that the Father was at risk of developing schizophrenia should he relapse into drug use, the presenting symptoms seemed to be a personality disturbance with an underlying susceptibility towards psychotic episodes, particularly if there was a relapse into drug use. He was reassured by the absence of evidence of schizophrenia, as well as the Father’s engagement with a psychiatrist who did not find any such evidence. Indeed, he opined that even the Father did have schizophrenia, he did not see that as the core issue.
Dr C felt that the Father’s personality and behaviour problems were the major issue. This involved his instability, potential for violent outbursts, and the risk of relapse into drug use. If there was schizophrenia, it was mild, but could well become psychotic under certain circumstances, particularly relapse into drug use. In relation to drug use, he was not of the view that the Father was risk free. He was firmly of the view that not enough time had elapsed since the Father’s last drug use.
Dr C referred to the evidence suggesting that individuals who had reached about four or five years of being drug free seemed to experience a significant reduction in the rate of relapse. However, in those first four years the rate of relapse was relatively high. He accepted the possibility that the Father may well have been drug free for two years and nine months, and indeed that the Father should be commended for doing this, but he nevertheless felt that the risk of relapse was present. This risk was exacerbated by the Father re-partnering with someone who he had met in rehab.
Counsel for the Father, Mr Alexander, conducted a considered and thorough cross-examination of Dr C. Dr C acknowledged that there appeared to have been some improvement in the Father since the last Report. There had been a maturation and an improvement in behaviour which has coincided with abstinence from drugs. He opined that there were prospects for limited but protected contact, in the circumstances. Dr C acknowledged the importance of [X] having a relationship with his father, but of course this needed to be balanced against risk of harm.
Dr C accepted that which was put to him by Mr Alexander, namely, that there was a risk of emotional harm to [X] if he did not have a relationship with his father. There was the risk that [X] would feel resentment towards his mother, because his father was not in his life. There was the risk that [X] would either idealise or demonise his father in his mind. There was the risk for [X] that as he grew developmentally he would start to recognise the absence of his father, and this would potentially affect his identity.
Whilst Dr C was clearly open to the proposition of [X] having some form of recognition contact with his father, so that he could start to have a more realistic of who his father was, he also explained that it was important to consider the impact on the Mother of this taking place, given that she was the undisputed primary carer who would, for example, have to cope with any destabilisation by [X].
By way of summary, the strong impression formed from the evidence of Dr C is that whilst he retained some important and significant concerns in relation to the Father, it was no longer necessarily a no-contact and no-communication case. The underlying personality and behavioural problems, and the potential for violent outbursts, as well as the risk of relapse into drug use, seemed to predicate the need for some form of limited supervised contact.
Dr C was of the view of that the Mother would need to do things to explain the Father’s existence, identity, and absence from [X]’s life. He suggested that the Mother try to help [X] understand that his father was unwell, and that the reason he has not been able to see his father is due to the fact that his father is unwell, but that did not mean that his father did not love him, and that there would not be a time, eventually, where he would be in [X]’s life. This was important, in order to avoid [X] feel as if he had been rejected, or abandoned by his father. Dr C seemed to be confident that the Mother would be able to do this.
Of course, Dr C appreciated the significance of the Father and [X] not having seen each other for many, many years. He was of the view that reintroduction to his Father would be like meeting a person for the first time. It would need to be done in a controlled, positive way with significant safeguards to ensure that it became a positive and not negative experience in [X]’s life. On one view, it was possible that the benefit to him at this stage in his life did not exceed the disadvantage of the reintroduction, and that it could perhaps be postponed to his teen years. If contact were reintroduced, however, it would certainly need to be supervised.
It was clear to the Court that Dr C was of the view that [X] would benefit from a limited form of supervised recognition contact with his Father. Dr C stated:
The aim of contact, at least of some recognition contact, is for [X] to develop, perhaps, almost like an uncle-type relationship where he can have a positive vision of the Father and be able to internalise this. (Transcript, 30 May 2019, page 18, lines 9 to 12).
The Court accepts Dr C’s evidence. It was considered, balanced, and clearly based on the totality of the evidence before him, and, indeed, the totality of the evidence before the Court.
The Father’s Evidence
The Father relied on two of his own Affidavits filed 11 October 2018 and 21 May 2019. The difficult life that he had even before meeting the Mother is set out in his main Trial Affidavit. His upbringing was unstable. He frequently changed schools. His parents separated when he was 5. He was diagnosed with dyslexia and ADHD. He had difficulty with his behaviour at school. From age 14, indeed possibly as early as 12, he started smoking marijuana and then progressed to methamphetamine when he was 16 or 17. He deposes (and the Court indeed accepts) that he took drugs until 2016. The Father, no doubt with the assistance of sensible legal advice, sought to portray in his Affidavit that he had gained insight into his past actions. There are many examples of this. For example he acknowledges that blaming others is unhelpful. He accepts that the Mother, with the help of her parents, has done a good job looking after [X]. He believes that the Mother is a very good mother. He reflects on his past inability to control himself, but especially the provocation that he perceives he experienced from the Mother. He was frank in accepting that in 2009 he experienced many difficulties with the Police, and this once again occurred in 2016. He stated that he could understand why the Mother, and her parents, would be very worried about his drug taking, criminal activity and lifestyle, but sought to emphasise that these were past, not present, matters. He accepted that it would take a long time to regain their confidence.
In relation to the violence allegations against him, he agreed that there were times when he became frustrated, angry, and did yell and swear at the Mother. In hindsight, he accepts that he was far too aggressive and angry towards the Mother.
The Father accepts that there was an incident on 24 March 2013 at KFC O Street, Suburb D . The details of this will be discussed below. What is of concern to the Court, however, is the Father’s statement at paragraph 39 of his Affidavit where he says:
The incident that occurred on 24 March 2013 at KFC O Street, Suburb D and the subsequent AVO order being made against me was as a direct result of the maternal family withholding [X] from me.
With great respect to the Father, that is not so. Having heard the evidence in cross-examination of both the Father and the Mother, the Court finds that even if it was a chance encounter between the Father and the Mother, he bashed on her car window, which led to a series of very frightening events for the Mother, for [X], and probably even for the Father. The Court finds that this was one of several incidents of violence perpetrated by the Father against the Mother, in the presence of [X]. It resulted in an AVO being made against the Father on 11 April 2013. There is simply no basis for the Court to accept the Father’s proposition quoted above. The AVO order was made purely and simply because of the Father’s behaviour. The broader circumstances were that the Father had last seen [X] the week before pursuant to an ad hoc (and with hindsight unworkable) arrangement between the parents. For the Father to try to suggest that this incident was somehow justified because his contact with [X] had been withheld is plainly unacceptable.
Moreover, what is of concern to the Court is the “mixed messages” in the Father’s evidence. On the one hand, he is seeking to portray to the Court that he had gained insight about past events, and was expressing contrition for them. On the other hand, as the above incident demonstrates, the Father’s distorted view of those events must suggest continued lack of insight.
Another example of the mixed messages in the Father’s evidence is his disclosure about a number of very serious charges laid against him following incidents which occurred on 31 January 2016. As it turned out, the Father was acquitted by a jury on all charges. The Father sought to put these matters before the Court in the context of demonstrating his insight into the price he paid for his previous lifestyle which involved taking ice, and mixing with people who both supplied and used ice. He was imprisoned between … and … 2016 as a result of the charges, but was released on acquittal. But what the Father did not tell the Court in his Trial Affidavit, but which emerged from cross-examination, were two relevant factual matters. Firstly, he did not disclose to the Court that whilst he was in jail he used marijuana, all in the context of admitted marijuana use since either ages 12 or 14. Secondly, he failed to disclose that as part of the matrix of the events on 31 January 2016 that led to the charges against him, he perpetrated what appears to have been a violent assault on another individual. True it is that he was not charged in respect of the assault, but the Court observes the assault charge would have been quite insignificant compared to the very serious aggravated sexual assault and take/detain person in company charges that were imposed on him.
It is very difficult in any circumstance for a parent who has done wrong in the past to come along to Court and to say to the Court, the mother of his child, and his child, that he has gained insight notwithstanding his past acts, and has become a new person, when it is clear that whatever insight was gained was based on limited disclosure.
This is a very sad case. In re-examination the Father was given the opportunity to address the Court about the changes he has made in his life. The Father’s comments were, at one level, quite impressive. He spoke in terms of managing his impulsivity, gaining empathy and understanding about other people and their perception of events, patience, and the futility of anger. He spoke of being able to see more clearly the person who he was, and the benefit of waking up each day with a clear head, and purpose in life. He openly spoke of accepting that the Mother had done a great job in raising [X], notwithstanding the circumstances of both of them being young and inexperienced parents.
However, past events often cast a giant shadow over later periods of time. This is one of those cases. As will be seen below, there were so many opportunities that the Father failed to take which could have made a profound difference in this case.
One such missed opportunity was in relation to evidence from the Father’s psychiatrist, Dr P. Regrettably, Dr P was not available to be examined on the reports that he authored, and which the Father sought to rely on at the Hearing. The reports in question were annexed to the Father’s Affidavit. The Court permitted him to rely on the same, subject to issues of weight. Both of Dr C’s reports raise quite serious concerns about the Father’s mental health. The postponement of the hearings gave the Father the opportunity to provide reassurance to the Court, and to Dr C, that the Father’s mental health had improved, and that the matters that were of such concern to Dr C had been addressed. Orders facilitating the provision to the Father’s treating psychiatric doctors of Dr C’s reports were made. According to the Father, Dr P would not read Dr C's Report. With respect to Dr P, the reports provided by him purportedly in support of the Father’s case are deficient because he failed to deal with the concerns raised by Dr C. Everything hat Dr P writes about in his reports is based on a provision of history by the Father. There are obvious limitations to the weight that the Court can place on such a report. In his letter of 6 February 2018 Dr P states that the purpose of the assessment: “…is if he is mentally fit to get custody of his son.” With respect to Dr P, that is only part of the challenge for the Court. Regrettably, Dr P’s expert evidence as the Father’s treating psychiatrist did very little to advance the Father’s case. A golden opportunity was missed.
The Father led evidence from his treating psychologist, Dr G. Dr G’s reports suffer from many of the same deficits as that of Dr P. For example, his reports were also based on the Father’s self-history. Neither report deals with one of the real risks that the Court has to manage in this case: the risk of relapse, whether into mental illness or drug or alcohol abuse.
The other significant missed opportunity was in relation to the Order for supervised contact at a supervised contact centre made as early as January 2014. Supervised contact at a supervised contact centre never took place. There is no evidence to suggest that the Mother did anything but comply with the Court’s Orders in relation to supervised to contact. The strong impression from the evidence is that it was the Father who failed to follow through in seeking to implement the Orders. There are two possible scenarios. Firstly, that the Father failed to attend the intake session, and then participate in the intake process. Secondly, that the Father did do the aforementioned, but then failed to follow up. What is particularly curious is that the Father was legally represented at the time. When cross-examined about this issue, the Father seemed quite unsure of himself. It is possible that his recollection of these events was poor. The Court finds that even if the Father did attend the intake interview and thereafter participated in the intake process, he certainly failed to follow through such that supervised contact commenced in accordance with the Order. Moreover, the Court finds that the Mother did nothing to prevent the commencement of supervised contact in accordance with the Order. Indeed, it was the Mother’s own proposal that this take place.
To complicate, and exacerbate the situation, the Father created a situation in which the only available supervisor, the maternal grandmother, declined to continue to do so. He took an AVO against her which was dismissed with an order for $2000 costs against him.
Again, one cannot help but wonder how different this case might have been if supervised contact had commenced as the Court ordered.
The concerns about the Father’s mental health were clearly articulated in Dr C’s evidence. Despite ample opportunity to do so, the Court is not satisfied that the Father has addressed the concern raised in Dr C’s evidence. The reports from Dr G (psychologist) and Dr P (psychiatrist) are inadequate in this regard.
The Court is prepare to conclude, however, that the Father’s evidence that he has not used drugs since 2016 is probably correct. Where the evidence of Dr G and Dr P is deficient once again, however, is in failing to address the clear concern that Dr C had about the risk of relapse for the Father. This was clearly a big issue for the Mother. The Father has not satisfactorily addressed this in his evidence.
The Father’s own evidence demonstrates that he was violent towards the Mother, often in the presence of [X]. At paragraph 30 of his Affidavit he referred to his own “past aggressive behaviour”. At paragraph 36 he states: “I agree that I was becoming frustrated and angry and on occasions I did yell and swear at Ms Rawson…. I was far too aggressive and angry towards Ms Rawson.” At paragraph 41 he agrees that when the AVO arising from the KFC incident went to Court in 11 April 2013, he agreed to it, albeit without admissions. At paragraph 42 he states: “I agreed that I was very upset and angry as I had got up early in the morning…”
Following the cross-examination of the Father, the Court makes the following further findings about the violence perpetrated by him against the Mother. The Court finds that towards the end of 2012, the Father threw an electric fan at the Mother. Whether or not he was frustrated, or had not aimed it at the Mother, the fact is he threw it at her. The Court finds that the incident at Suburb D KFC did involve the Father bashing on the windows of the Mother’s car, resulting in the Mother becoming fearful for her safety, as well as [X]. The Court finds that on or about Father’s Day 2013, he said to the Mother words to the effect: “I’m coming around to rip your head off.”
The Court finds that on 30 October 2013 the Father walked into the Mother’s home unannounced, and thus breached the existing apprehended violence order against him. The Court finds that there was an incident at a Shopping Centre in Town T in December 2012 in which the Father came up behind the Mother and pushed her, causing her to stumble and fall over. The Father was not charged with this event until two years later, that he pleaded guilty and was convicted of common assault.
The Father’s evidence in cross-examination about this incident is concerning. It was put to him in cross-examination, and the Court indeed finds, that he pushed her. At first, he said that it was merely with one hand and it wasn’t a push but ‘yes’ it made contact and ‘yes’ she fell over. Then he later said that the Mother, in fact, did not fall over, she jumped and lost her balance.
In cross-examination about the KFC incident, he told the Court that he felt that the Mother had deliberately reversed the car, forcing him to jump on the bonnet in order to get out of the way. He was reminded of his evidence at paragraph 40 of the Trial Affidavit;
I realise now that the above incident could have turned out much more serious, but I never expected that she would react in the way she did. Again, I acknowledge that I should not have sworn or done anything that could be upsetting for [X]. I would not do that again. I also realise that I could have been seriously injured when she hit the other car and I was still clinging to the boot. As the car was moving, I felt I just had to try and hang on until she stopped or that she may attempt to reverse over me again. I realise that was a very bad decision and Ms Rawson would have found it threatening.
The Court could not help but form the impression that there was an element of the Father portraying the Mother as the aggressor and himself as the victim in this incident.
It is also clear to the Court that during the course of, or at least incidental to, the incident on 31 January 2016 that led to the Father being charged, jailed, but subsequently acquitted, he did perpetrate what appears to be a serious assault on another person. When he was cross-examined about this event, his explanation was that it possibly occurred but that: “I was drug-induced at the time… it is over and done with.”
The concern about the above evidence is that it smacks of minimisation and externalisation of responsibility for the violence. Moreover, a theme of the Father’s answers in cross-examination was to distance himself from responsibility in relation to events that occurred when he was under the influence of drugs. With respect to the Father, the above is not an example of the change in himself that the Father refers to at paragraph 23 of his Trial Affidavit when he says: “… blaming others in unhelpful”. Again, with respect, such minimisation and externalisation will hardly provide the reassurance to the Mother and her parents that the Father himself acknowledged was needed in this case.
Just focusing on the violence for the time being, not even the Father contended that the violence that he perpetrated on the Mother, often in the presence of [X], was perpetrated at times when he was under the influence of drugs. It is a curious deficit in the reports provided by Dr G and Dr P that they would not address this issue.
It is with the deepest regret that the Court concludes that the Father simply has not addressed in a satisfactory manner in his evidence the many serious issues that are raised in this case. He had ample opportunity to do so, but did not.
The Mother’s evidence
In discussing the Mother’s evidence, it is important to remember that even the Father conceded that the Mother should have sole parental responsibility and that [X] should live with her. It was his own evidence that the Mother was good mother who had done a good job in raising [X]. The scope of relevance of the Mother’s evidence was, accordingly, limited.
The Mother presented in cross-examination as an intelligent, articulate, sometimes feisty, but certainly as a concerned parent. She had somewhat rigid views in her mind about the risk of harm to [X] from his father. She was curiously inflexible about issues which, in this case were, in reality, quite irrelevant. She would not concede, for example, that payments made by the Father for [X]’s benefit were a de facto form of child support. There is no point discussing this evidence because of its very limited relevance to the case. Nonetheless, this issue demonstrates the Mother’s singular black and white thinking about certain issues pertaining to her son.
Another example was the Mother’s steadfast refusal to accept that the Father no longer presented a risk to [X] because of drug abuse. Even though she accepted that the objective evidence before the Court was that he had not used in three years, her steadfast view about the risk of relapse was based on history. She said words to the effect: “… he said in the past that he’s off drugs, then he relapses… it’s a cycle…”. She had a similar concern in relation to the risk of what she perceived as the serious risk of relapse into mental illness by the Father.
Nonetheless, she showed moments of insight, particularly in relation to the inappropriateness of her own behaviour. For example, she conceded in cross-examination that she lost emotional control at the time of the KFC incident. She accepted that she drove recklessly “… to get away…” She accepted that some of the communication between her and the Father was nasty and inappropriate.
What is clear to the Court, however, from the Mother’s Affidavit evidence and her cross-examination is that when she refused the Father time with [X] prior to the making of orders, she was genuinely concerned about the Father’s capacity to care for [X]. She was the one who proposed, and indeed implemented, supervised contact before orders were made. She supported the making of supervised contact orders which involved the maternal grandmother and then a supervised contact centre. She did everything that she was required to do in order to implement the supervised contact order. She accepted in cross-examination that suitable supervision might address the issues that she has about the danger that the Father presents for [X].
The Court finds that there is no evidence before it to suggest that she does not, as a matter of principle, support [X]’s relationship with his father. Moreover, there is no evidence to suggest that she would not comply with any order for supervised recognition contact, as contemplated by Dr C and as proposed by the Independent Children’s Lawyer.
The other witnesses
The maternal grandmother was cross-examined. There is nothing significant that emerges from her evidence which would materially impact on the Court’s determination of this case. She freely accepted that whilst she did not approve of her daughter’s relationship with the Father, or of the Father generally, she nonetheless supervised his contact with [X] for over four months. The maternal grandmother shared her daughter’s somewhat odd and strident views about the nature of the payments made by the Father for the benefit of [X]. The Court accepts that the maternal grandmother had reasonable grounds for ceasing to act as supervisor of the Father’s time. She was concerned about the Father’s erratic behaviour and inability to prioritise [X], even when he was spending time with him. She was also concerned about the Father’s mental health, as evidenced from Facebook posts that were in evidence.
The Father’s treating psychologist, Dr G, gave evidence. Dr G’s evidence was helpful, but really did not address the concerns about the role of his reports, which have been expressed earlier in these Reasons for Judgment. Dr G had, in fact, read Dr C's Report, and indeed he was the one who read it to the Father to support him in understanding. He had only read Dr C's Second Report. A major part of Dr G’s involvement related to the Father’s criminal charges and incarceration, as well as the emotional aftermath when he was acquitted. Dr G acknowledged that his information was based on the self-report of the Father.
The paternal grandfather, Mr R, was cross-examined. His wife, Ms F, was also cross-examined. They were both aware of their son’s proposal for them to act as supervisors and, in fact, to spend time with [X] on their own for a period in order to get to know [X]. They both acknowledged that they have never supervised [X]’s time with his father before. They both accepted that [X] would not know them. They both demonstrated an insight into the formidable challenges of firstly getting to know [X], and then facilitating supervised time with the Father.
If the Court were to consider that the Father’s proposal was in [X]’s best interest, then Mr and Ms F would be suitable supervisors. As it turns out, however, that is not the Court’s formulation.
The Orders in [X]’s best interests
[X] does not have a meaningful relationship with his father. There were many opportunities for this to have developed but, regrettably, the Father did not avail himself of those opportunities. There is undoubtedly a benefit, in a prospective sense, of [X] knowing his father, and having a relationship with him. The advantages, and disadvantages to [X] of having time with his father are discussed in Dr C’s evidence.
However, the totality of the evidence before the Court leads it to conclude that there is a risk at least of emotional harm, and possibly even physical harm to [X] if he spend time with his father. The totality of the evidence leads the Court to have ongoing concerns in relation to the Father’s capacity to parent [X], and to be a positive influence and role model in his life. There are unresolved mental health issues in the Father’s life. Once again, the Father missed the opportunities given to him by these proceedings to reassure the Court about his mental health. The risk of relapse into drug use is a real one. He has not yet been abstinent long enough to provide reassurance to Dr C, and to this Court. The Father perpetrated family violence against the Mother, often in the presence of the Child. There is very little in the evidence to reassure the Court about his acknowledgement of the same, of its impact on the Mother and [X], and how it might reflect in his parenting. The Father’s case that he was a changed man and, implicitly, that he no longer presented a risk of harm to [X], is inconsistent with his own evidence.
There are no relevant views to be considered in this case.
Even the Father concedes that the Mother has been [X]’s primary carer and that she has, indeed, been a good mother who has done a good job in raising him. For all practical purposes [X] has no relationship with his father, who he has not seen in over five years.
The Father failed to take advantage of the opportunities for him to spend time with [X]. His extraordinary and inexplicable failure to take advantage of supervised contact is even now a mystery.
The Father has tried to meet his obligations to provide financial support for his son.
Any resumption of time between [X] and his father would be a substantial change in his life, as it would be for his mother and father. Any reintroduction would need to take place in the context of appropriate therapeutic support and intervention and in a highly controlled environment.
There appear to be no issues of practical difficulty and expense if [X] were to spend time with his father. His father is working and should be able to afford the cost of any private supervised contact service.
There are no issues about the Mother’s parenting capacity. There remain issues about the Father’s parenting capacity. These concerns are even reflected in the Father’s case. The personality and mental health issues affecting the Father are amply set out and discussed in Dr C’s evidence.
The Mother has demonstrated, through her actions, a responsible attitude towards parenting [X], initially in very difficult circumstances. She has been amply supported by her parents. The Father has, in reality, struggled in this regard.
The Father has perpetrated family violence towards the Mother, in the presence of the Child.
It would clearly be preferably, and in [X]’s best interests, to make an order that is least likely to lead to the institution of further proceedings in relation to him. The Father’s proposal in this regard, i.e., for interim orders was highly problematic, particularly in circumstances when there is so much he could have done at an earlier point in these proceedings. It is time for closure, so far is [X] is concerned.
Having regard to all the evidence, and the matters set out above, the Court concludes that the Orders proposed by the Independent Children’s Lawyer are in [X]’s best interests. The Order for both [X] and his mother to engage in therapeutic counselling about the role of the Father in [X]’s life is critical. It would need to happen before any contact between [X] and his father occurs. Likewise, the Father needs to obtain therapeutic assistance in order to facilitate the least stressful reintroduction of [X] into his life, for both [X] and himself. The Orders proposed by the Independent Children’s Lawyer give effect to the above.
The Father should have supervised, recognition-type contact with his son, through Catholic Care Children’s Contact Service at Town A. To the extent that this service is able to do so, it should be for 2 hours, four times each calendar year, and unless otherwise agreed it should be on the first Saturday of each school holiday period, onsite at the contact service unless recommended by the centre service, and agreed to by the Mother. Given the Father’s employment, it is appropriate for him to pay the fees associated with this. Before this commences, however, the parents must have engaged in the therapy above.
It is also appropriate, as the Independent Children’s Lawyer proposes, that whenever the Father is spending time with [X] he should also be able to send cards and/or gifts.
The remaining Orders proposed by the Independent Children’s Lawyer are proportionate to the issues raised in this case, appropriate and focused on the best interests of [X].
This Court is satisfied that, in all the circumstances, these Orders are in the best interests of [X].
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 6 August 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Standing
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Costs
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