Re Christine - a child - contact
[2003] FMCAfam 438
•10 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RE CHRISTINE – a child – contact | [2003] FMCAfam 438 |
| FAMILY LAW – Parenting orders – children – contact – best interests – family violence – whether father should be permitted unsupervised contact – father having a history of mental disturbance and violence – whether the father’s condition has resolved – whether the mother’s parenting capacity would be adversely affected by contact due to her anxiety. |
Family Law Act 1975 (Cth), ss.60B, 65E, 68F
A & A (1998) FLC 92-800
B & B (1993) FLC 92-357
B & L [2001] FMCAfam 84
Re Andrew (1996) FLC 92-692
| Applicant: | OH |
| Respondent: | DT |
| File No: | NCM3181 of 2002 |
| Delivered on: | 10 October 2003 |
| Delivered at: | Sydney, by telephone to Newcastle |
| Hearing date: | 25-26 September 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Sundstrom |
| Solicitors for the Applicant: | Whitelaw McDonald |
| Counsel for the Respondent: | Mr Bates |
| Solicitors for the Respondent: | Martin G Reilly |
ORDERS
The child CHRISTINE, born 4 June 2000 (“the child”) shall live with the mother.
The mother shall have sole responsibility for making decisions concerning the child’s long term care, welfare and development until the child attains the age of 8 years.
The father shall attend upon Dr Frank Lumley, consultant psychiatrist, on as may occasions as is required by Dr Lumley, for a further mental health assessment, and the father shall obtain from Dr Lumley a written report addressing the issue of whether the father suffers from a mental condition which impairs his ability to have unsupervised contact with the child.
The father shall provide a copy of Dr Lumley’s report to the solicitor for the mother, who may disclose the report to the mother if he considers it appropriate to do so.
Provided that the father complies with orders 3 and 4, the father shall have supervised contact with the child as follows:
(a)for two hours three times a week for six weeks at the Rainbow Children’s Contact Service at Hamilton, at a time and on days to be arranged with that service, with the cost to be borne by the father;
(b)for four hours two times per week for a further six weeks at the Rainbow children’s Contact Service at Hamilton, at a time and on days to be arranged with that service, with the cost to be borne by the father;
(c)following the completion of 12 weeks contact pursuant to orders 5(a) and 5(b), between 10.00am and 4.00pm each Tuesday and Saturday, for a period of six months, commencing on a day to be notified in writing to the mother not less than seven days prior to that day, at the home of the father’s brother AH and his sister-in-law CH, provided that such contact shall be supervised by either or both AH and CH, or if they are unavailable, by the father’s sister AW or her husband NW at their home.
For the purpose of giving effect to orders 5(a) and 5(b) the mother is to deliver the child to the Rainbow Centre prior to each period of contact and is to collect the child from that Centre following such period of contact.
For the purposes of giving effect to order 5(c), the supervisor of contact is to collect the child from the mother’s home at the start of each period of contact and is to deliver the child to the mother’s home at the conclusion of each period of contact, provided that the father shall not be present at the mother’s home when the child is collected and returned.
Following completion of supervised contact pursuant to order 5 and subject to the proviso that Dr Lumley’s report is not adverse to the father, the father shall have unsupervised contact with the child as follows:
(a)commencing on a date to be notified to the mother in writing not less than seven days before the commencing date, each alternate Saturday and Sunday from 9.30am until 4.30pm for six months;
(b)thereafter, from 9.30am on Saturday until 5.30pm on Sunday, each alternate weekend, until the child commences grade 1 at school;
(c)thereafter from 5.00pm on Friday until 5.00pm on Sunday on alternate weekends, and for one half of each gazetted NSW school holiday period, being the first half in even numbered years, and the second half in odd numbered years, save that contact pursuant to his order is suspended between 12.00pm on Christmas Eve and 12.00pm on Boxing Day;
(d)between 12.00pm on Christmas Day and 12.00pm on Boxing Day in even numbered years, and between 12.00pm on Christmas Eve and 12.00pm on Christmas day in odd numbered years;
(e)in any case, for four hours on the child’s birthday if it is not otherwise a contact day;
(f)in any case, between 9.30am and 4.30pm on Father’s Day, if it is not otherwise a contact day;
(g)in any case, for four hours on the father’s birthday if it is not otherwise a contact day;
(h)such other contact as may be agreed between the parties from time to time.
Contact pursuant to order 8 is to begin and end at the Rainbow Children’s Contact Service at Hamilton, unless the parties agree otherwise.
Contact pursuant to order 8 shall not take place on any weekend that includes Mother’s Day, but contact in substitution therefore shall occur on the following weekend at the same times as provided for pursuant to order 8.
Contact is suspended on the mother’s birthday from 5.00pm on the day preceding the mother’s birthday until the day following the mother’s birthday.
The father is restrained, and an injunction is hereby granted restraining him from consuming alcohol or any illicit substance on any day that he is exercising contact pursuant to these orders.
Pursuant to s.62F of the Family Law Act 1975 (Cth) the mother shall attend a course of counselling with a counsellor nominated by the Coordinator of Primary Dispute Resolution of the Federal Magistrates Court, to assist the mother to deal with anxiety issues associated with contact between the father and the child.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM3181 of 2002
| OH |
Applicant
And
| DT |
Respondent
REASONS FOR JUDGMENT
Introduction and background
Mr O H is the father of the child CHRISTINE (not her real name), who was born on 4 June 2000. By his application filed on 17 May 2002 the father seeks contact with Christine, on the basis that it would be initially supervised by Relationships Australia for a period of three months. Thereafter, the father seeks unsupervised contact. In her amended response filed on 22 October 2002, the child’s mother seeks orders that she have the sole permanent responsibility for the care, welfare and development of Christine and that Christine live with her. The mother seeks an order that the father have no contact with the child. She also sought orders that would prevent the father from contacting her, although that was not pressed. The mother sought further orders that would prevent the father obtaining a passport for the child or obtaining a location order under the Family Law Act 1975 (Cth) (“the Family Law Act”). Again, that was not pressed. The mother also seeks her legal costs.
To date, no orders for contact between the father and the child have been made.
The father relies upon his own affidavits filed on 17 May 2002, 23 October 2002 and 9 September 2003. He also relies upon a medical report by Dr Frank Lumley filed on 23 September 2003. Both were cross-examined. I also permitted the father to lead oral evidence from his sister-in-law on the question of the possible supervision of contact by her and/or her husband, the father’s brother.
The mother relies upon her own affidavits filed on 22 October 2002, 22 November 2002 and 8 September 2003, as well as affidavits by an early childhood worker filed on 18 August 2003, and two psychologists, filed on 18 August 2003. The mother further relies upon medical reports by a psychiatrist filed on 4 September 2003 and a clinical psychologist, filed on 4 September 2003.
A family report has also been prepared by Dr Robyn Cotton on 4 August 2003. Dr Cotton recommends that Christine have contact with her father, initially supervised for a period of six weeks by a neutral party such as Relationships Australia at the Rainbow Centre, and that thereafter that Christine have unsupervised contact with the father on an increasing basis.
A substantial number of documents were also tendered by each of the parties. These were documents produced on subpoena by the NSW Department of Community Services: exhibit A1; Hunter Health medical records relating to the father: exhibit R1; the NSW Department of Correctional Health Service medical records relating to the father: exhibit R2; and police records relating to the father: exhibit R3.
The parties met in late 1998 and developed a relationship the following year after the mother became pregnant to the father with Christine. They became engaged in October 1999 but did not marry. The mother has a son Mark (not his real name) (born 27 January 1983) to a previous partner and Mark has lived with the mother since the relationship between her and Mark’s father ended.
The relationship between the father and the mother proved turbulent. In particular, Mark and the father were hostile to one another. Mark suffers from Attention Deficit Disorder and has behavioural problems. The father found it difficult to deal with Mark and, by his own admission, handled the situation poorly. He became violent and abusive towards Mark. The father was charged with assault and sentenced to six months weekend detention. He did not attend and was arrested and sentenced to seven months imprisonment. He was released from prison on 16 July 2003. The father has numerous other convictions relating to possession of cannabis and driving when under the influence of alcohol.
The mother strongly believes that the father suffers from a personality disorder. He has been admitted on two occasions to the James Fletcher Hospital Mental Health Unit where mention, but apparently no firm diagnosis, of possible personality disorder was made. The father admits serious past problems relating to the use of alcohol and repeated threats of self harm including threats of suicide. The mother believes that the father cannot be trusted to have contact with the child. She suffers from anxiety concerning the prospect of contact. There is evidence that the mental health of the mother would be adversely affected by contact between the child and the father.
The father has a son by an earlier relationship, David (not his real name) (born 4 March 1994). David lives with his mother but the father has regular contact with him by private arrangement with David’s mother.
Relevant law
I referred to the relevant principles in a parenting case in B & L [2001] FMCAfam 84. Parenting orders arise in proceedings that result from Part VII of the Family Law Act. The overriding principle in such proceedings is that the best interests of the child is the paramount consideration: s.65E of the Family Law Act. Subject to that, s.60B sets out the objects of Part VII and the principles which underlie those objects. The four principles are:
(1)Children have a 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.
(2)Children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development.
(3)Parents share duties and responsibilities covering the care, welfare and development of their children.
(4)Parents should agree about the future parenting of their children.
These are only principles, not prescriptive rules, and the best interests of the particular child in this case remains the paramount consideration.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s.68F(2). It is clear from that provision that the list of factors is not closed and that the infinite variety of individual children’s circumstances can be addressed.
Submissions
Mr Sundstrom, for the father, submits that the father should have supervised contact at the Rainbow Centre for up to six months, followed by a further six months of contact supervised by his sister‑in‑law and brother. He further submits that the father should undergo a further and definitive mental health assessment in order to establish incontrovertibly that the father poses no risk to Christine that would prevent unsupervised contact. Subject to those conditions, Mr Sundstrom submits that the father should have unsupervised contact with Christine increasing over time, on the basis proposed by the father.
Mr Sundstrom submits that the available evidence establishes that the father does not pose a risk to Christine, and that past problems have concerned the father’s relationship with the mother and Mark, which have been resolved by separation.
Mr Sundstrom accepts that the mother needs reassurance, noting that she appears to suffer from post traumatic stress disorder, but submits that her condition should not prevent contact that would otherwise be in the child’s best interests.
Mr Bates, for the mother, submits that there should be no contact. He relies upon the decision of the full Family Court in Re Andrew (1996) FLC 92-692. That case establishes that a relevant consideration in a case such as this is the primary caregiver’s likely reaction to contact. In that case, unsupervised contact was found to be inappropriate because of the genuine and significant fear held by the mother, which would impair to a significant degree her ability to provide adequately for the needs of the child. In the circumstances, unsupervised contact was found not to be in the child’s best interests.
Mr Bates also took me to the decision of the Full Family Court in B & B (1993) FLC 92-357 where the Court warned of the undesirability of family members of the contact parent supervising contact where either abuse has been found or there is an unacceptable risk of abuse occurring.
In reply, Mr Sundstrom pointed out that B & B was a case of a father sexually abusing children. In this case there is no issue of the father abusing Christine. Further, Mr Sundstrom submits that the authority of Re Andrew has been superseded by the decision of the Full Family court in A & A (1998) FLC 92-800, where the Court emphasised that the issue to be resolved is whether the circumstances represent an unacceptable risk to the child if contact, or at least unsupervised contact, was to continue (or here, to be restored). The question of the mother’s belief and the reasonableness of that belief is a secondary issue.
Reasoning
The child’s wishes
Christine is only three and has not expressed any relevant wishes. Nevertheless, Dr Cotton reports that during an observation session with the father and Christine, Christine tried to prevent the session terminating at the end of it. She appeared interested in her father.
The nature of the child’s relationships
Apart from the short observation session with Dr Cotton, the father has not seen Christine for nearly two years. The mother has not permitted any contact over that period. The mother’s attitude is characterised by extreme fear. There is some real substance to the mother’s fear. The father was wholly unable to cope with Mark during their relationship and he was violent and abusive to him. Admittedly, Mark himself has behavioural problems and was difficult to handle. Mark had been violent and abusive towards the mother. In addition, the mother had suffered at least one serious assault at the hands of Mark’s father and Mark had also been assaulted by his father. The result of these traumatic experiences is that the mother is now obsessively protective towards Christine.
The likely effect of any changes in the child’s circumstances
Christine is a young child who would, in ordinary circumstances, be expected to cope well with the orderly re-introduction of contact with her father. However, the mother’s extreme lack of trust of the father and her obsessive opposition to any contact that is unsupervised, or even supervised contact that might lead to unsupervised contact, is an obstacle. The mother’s medical evidence is that she suffers from an anxiety condition which would be significantly worsened if contact occurred. She exhibits strong symptoms of post traumatic stress disorder. The medical opinion is that if there was to be a deterioration in the mother’s anxiety condition, this would adversely impact on her capacity to perform her parental role. Such a negative impact on the mother could also impact adversely upon Christine.
On the other hand, Dr Cotton and Dr Lumley expressed the opinion that the resumption of contact could be beneficial to the mother in resolving her anxiety, so long as the contact is successful. I formed the strong impression while observing the mother in the witness box under cross-examination that her opposition to any contact that might lead to unsupervised contact was obsessive and irrational. However, the mother’s concerns are genuine in that she really believes that harm will come to her daughter if contact occurs. In the circumstances, any re‑introduction of contact needs to be cautiously handled.
Practical difficulty and expense associated with contact
The parties live in the same area and would be able to travel to contact changeover points or supervised contact points quite easily. Some expense would be associated with supervised contact at the Rainbow Centre but that expense would be relatively modest.
Capacity of parents to meet the child’s needs
I am satisfied that the mother has the capacity to meet Christine’s physical needs. I regard her as a woman who has been psychologically damaged by two abusive relationships and the added difficulty of coping with the behaviour of her son Mark. This has somewhat impaired her ability to make objective and rational assessments. She has the capacity to meet Christine’s emotional needs but there is a real risk of the mother being excessively protective of Christine.
The father presents as a subdued man who has also suffered psychological trauma. Following his release from prison he has lived with his grandmother. His parents, who are separated, and his brother and sister-in-law also live in the general area. The father’s sister and her husband also live in the area. I had the opportunity to observe the father’s sister-in-law in the witness box. She impressed me as a particularly sensible, well adjusted person. I am satisfied that with the support of his family, the father could meet the physical and psychological needs of Christine during initially short term contact visits. Over time, the length of these visits could be extended.
The father does not accept that he suffers from a personality disorder. He accepts that he has in the past abused alcohol but asserts that he now has that problem under control. The opinion of Dr Lumley and Dr Cotton supports that.
The father concedes that his past behaviour to Mark was unacceptable but sought to minimise the impact of that behaviour by reference to Mark’s own behavioural problems. The father suffered an adjustment disorder and associated severe depression when the parties’ relationship was put under strain and broke down. That relationship has now ended and accordingly that stressor has been removed. Nevertheless, there is a risk that the father could regress if he suffers new stressors. In my view, some further clinical assessment is necessary in order to provide further assurance that the father has an unimpaired capacity to exercise unsupervised contact.
The child’s maturity, sex, background and other characteristics
No relevant considerations arise under this heading.
The need to protect the child from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour
There is no evidence that the father has been intentionally abusive or violent towards Christine. He has been abusive and violent towards the mother and Mark. On 6 January 2001 the mother sought to intervene in a fight between the father and Mark while she was carrying Christine. As a result, the mother was either pushed or fell and was injured. That was an unfortunate consequence of the father’s abusive relationship with Mark but his violence was not directed towards Christine.
The relationship between the mother and the father is at an end. The father has now nothing to do with the mother nor with Mark. I believe the father’s evidence that he loves his daughter and would never harm her intentionally. There is a risk that the father may resume his excessive use of alcohol or other drugs and there is a risk that the father’s mental state could once again deteriorate. In those circumstances, there is a risk that the father may unintentionally harm Christine. Those risks need to be addressed in any contact orders.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
Dr Cotton found that the father’s behaviour with Christine was “impeccable”. I accept that his desire for contact with his daughter is genuine. I also accept that the father now has no wish to resume his relationship with the mother and would not use contact with Christine for the purpose of attempting to resume that relationship. Dr Cotton found, and I accept, that the father suffered from an adjustment disorder at the time of the breakdown of his relationship with the mother. Dr Lumley found him to be clinically depressed at the time. His mental state at the time was extremely poor. I find, however, that the father’s mental state has improved since he has served his term of imprisonment. The father is not a deep thinker but I find that his attitude to Christine is now mature and healthy. Subject to initial supervision and the support of his family, and some further professional assessment, the father has the capacity to take on his parental responsibility to an increasing degree.
Dr Cotton found that the mother has difficulty in separating her needs from those of Christine. I accept that the mother has transferred her desire for protection from the father to a desire to protect Christine from him. Her fears, while genuine, have become obsessive and unhealthy. Apart from that, the mother presents as a normal and caring mother who wishes nothing but the best for Christine.
Any family violence involving the child or any member of the child’s family and family violence orders
The mother and Mark have in the past been protected by apprehended violence orders. The mother has also in the past taken out an apprehended violence order protecting Christine from the father. This prevented the father exercising supervised contact at the Rainbow Centre in 2001. The father’s conduct towards the mother and Mark was reprehensible. The father has served a term of imprisonment because of it. However, the father has never intentionally sought to harm Christine and I am satisfied that he would not do so.
The mother has sought the protection of specific issues orders preventing the father from coming into contact with her. I am not satisfied that such orders are necessary. In any event, that aspect of the mother’s application was not pressed. The father accepts that his relationship with the mother is at an end and I do not believe that he has any continuing intention to cause harm or distress to the mother or to Mark.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child
In my view, provided that orders are put in place which deal with the established risk of harm coming to Christine as a result of contact with the father and which approach the re-introduction of contact with due caution, further proceedings will not be likely and should not be necessary.
Any other fact or circumstance the Court thinks relevant
The father has no need of further contact with the mother and Mark. Indeed, it would be better for both if there was no contact, especially in the short term. In addition, the mother, Mark (and Christine) are protected by an apprehended violence order that does not expire until mid 2008. In those circumstances, it would be inappropriate, at least in the short term, for the parents to share decision making concerning Christine’s long term care, welfare and development. The mother should exercise that responsibility alone until Christine attains 8 years of age.
The mother has not been consistent on the issue of contact. In her initial response, filed on 16 August 2002, the mother sought strictly supervised contact. In her amended response, filed on 22 October 2002, she sought an order that there be no contact. In her evidence, the mother at times said that no contact was acceptable to her, and at other times said that she could not accept supervised contact that might lead to unsupervised contact. She told me that her fears about contact would be allayed if she could be satisfied that the father does not have a personality disorder and if there is a proper professional assessment that he posses no risk to the child. She was, however, unmoved by the evidence already available that says just that. It is a matter of conjecture what would satisfy the mother. Perhaps nothing would. I think it more likely, however, that a confidence building program of supervised contact, coupled with a further and definitive medical assessment of the father, and a restriction on the father’s use of alcohol and drugs, should allay any reasonable fears that the other may have about unsupervised contact. Her remaining fears, if unreasonable, should not be permitted to prevent that contact.
Conclusions
The father committed an offence in assaulting Mark and has served a term of imprisonment as a result. He was violent and abusive towards the mother and Mark, but acknowledges his bad behaviour. He has used illicit drugs and abused alcohol and has suffered from an adjustment disorder but that condition appears to have resolved. He apparently no longer uses drugs and has moderated his use of alcohol. Christine would benefit from having supervised contact with the father, initially under strict conditions and subject to a further medical assessment of the father, and restraint upon his use of alcohol and drugs. Provided that that supervised contact is successful, the father should be permitted to move to unsupervised contact in the future. No contact orders are immutable. The orders that the Court will make can be reconsidered if changed circumstances require it.
The mother suffers from post traumatic stress disorder and should receive counselling in order to assist her to deal with that condition in the context of the re-introduction of contact.
No issue of costs seriously arises in these proceedings and there will be no order as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 October 2003
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