Rees & Kickels-Rees

[2008] FamCA 320

FAMILY COURT OF AUSTRALIA

REES & KICKELS-REES [2008] FamCA 320

FAMILY LAW – CHILDREN – with whom a child lives – child living with mother – mother’s alcohol abuse and whether the child is being subject to abuse and neglect in mother’s care.

FAMILY LAW – PRACTICE AND PROCEDURE – mother imprisoned after trial hearing - discontinued proceedings - amended application by father seeking sole parental responsibility for child - application unable to be served on mother – appropriate to proceed to deal with matter and conclude proceedings. 

FAMILY LAW – INJUNCTIONS – s60CC(3)(j) significant factor in this matter - father seeking injunction preventing mother from instituting further proceedings until it is established that she has overcome alcohol abuse problems and injunction restraining Centacare NT from having any input in any future proceedings between the parties - consideration of s118 – orders father seeks not within provisions of s118 – Court would only make order preventing a person bringing further proceedings in exceptional circumstances – not satisfied that it is reasonable to place injunction on mother in terms the father seeks.

FAMILY LAW – PRACTICE AND PROCEDURE – evidence to be considered in future proceedings – father concerned about further proceedings being instituted by the mother in the immediate future – recommendations to any Court hearing future applications in relation to the child as to the evidence required for the Court to be satisfied that the mother has overcome alcohol problems and is fit to care for the child.

Family Law Act 1975 (Cth) ss 60CC, 118.

APPLICANT: Mr Rees

RESPONDENT: Ms Kickels-Rees

INDEPENDENT CHILDREN’S LAWYER: Ms Giacomo

FILE NUMBER: DNC 335 of 2007

DATE DELIVERED: 28 April 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Justice Dawe

HEARING DATE: 28 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-Represented

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Giacomo

INDEPENDENT CHILDREN’S LAWYER SOLICITOR Ward Keller Lawyer

Orders

(1)The proceedings in relation to child support be transferred to the Federal Magistrates Court in Darwin in the Northern Territory at a time to be advised by the Federal Magistrates Court in Darwin Northern Territory, with the father seeking leave to attend the first hearing by telephone link.

(2)The father have sole parental responsibility for the child … (“the child”) and the child live with him.

(3)The mother sign documents forwarded to the mother care of the Berrimah Women’s Prison in Darwin, Northern Territory by the father in relation to the issue of a passport for the child and that if within thirty [30] days of those documents being forwarded to the mother the father has not received the signed documents back from the mother then on proof of such by affidavit of the father a Registrar of the Family Court of Australia sign the passport application documents for the issue of an Australian passport for the child and do all things necessary to effect the issue of a passport for the child.

(4)The father be permitted to leave Australia with the child provided that the child’s absence from Australia does not exceed thirty [30] days on any one occasion and that prior to leaving Australia with the child for any holiday the father provide a full itinerary indicating places of accommodation and activities for the child during the child’s absence from Australia, such itinerary to be provided to the mother at her last known address not less than thirty [30] days before the father proposes to leave to go on holiday out of Australia with the child.

(5)Paragraphs 2 and 5 of the father’s Application in a Case filed on the 10 April 2008 are dismissed.

(6)The appointment of the Independent Children’s Lawyer is discharged.

(7)IT IS DIRECTED that a copy of the reasons and sealed orders be sent by the Family Court of Australia to the mother c/o the Berrimah Women’s Prison in Darwin, Northern Territory.

(8)Permission is given to the Independent Children’s Lawyer and the father to provide copies of these orders and reasons for judgment to any officer of Northern Territory or Commonwealth Government department or agency concerned with matters affecting the welfare of children.

IT IS NOTED that publication of this judgment under the pseudonym Rees & Kickels-Rees is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 335 of 2007

MR REES

Applicant

And

MS KICKELS-REES

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter which concerns the welfare of the child of the parties commenced before me as a trial in Darwin last year.  The matter has an unusual history.  Even though the mother has now discontinued all proceedings, I propose to give some detailed extempore reasons for the orders that I propose to make.

2. The child of the parties was born in September 2003.  At the time the matter commenced before me for trial, he had been residing in the care of his mother for a considerable period of time, the parties having separated some years earlier.  At the trial the mother was represented by Mr Gardiner of counsel.  The father was unrepresented and Ms Giacomo appeared as the Independent Children's Lawyer.

3. The matter came on for directions before me prior to the trial commencing.  Orders were made for the preparation of the matter for trial.  The trial then commenced in Darwin before me on 17 September and continued through to 21 September, when the matter was adjourned part-heard for closing submissions before me by way of video‑link on 26 October 2007. 

4. One of the matters considered by me at the trial related to an incident in June of 2007 when at the conclusion of a period that the child had spent with his father, handover was to take place at the police station.  I heard the evidence of the parties and a police officer who was present on that occasion.  I accept the evidence of the police officer and the father in preference to that of the mother as to the events which occurred on that occasion.  The mother attempted to collect the child on that occasion but, because of the circumstances, the child ran back to the father and remained with the father.  The mother was spoken to by the police officer who recommended she not drive.  Nonetheless, she did drive and shortly thereafter was arrested for driving whilst under the influence of alcohol.  As a result, she was disqualified from driving for a period of time. 

5. At the trial hearing which commenced before me in September 2007, the mother's alcohol abuse was a significant factor to be determined.  This relates quite clearly to her capacity to provide properly for the child and her understanding of her responsibilities of a parent of the child to care for the child safely.  The father's case was that the mother regularly abused alcohol and that her behaviour at those times clearly placed the child at risk of both neglect and abuse by herself and by others in whose company the mother mixed while she was under the influence of alcohol.  These were significant issues at the trial.

6. The mother denied any basis for the father’s concerns when she gave her oral evidence.  However, when the matter was due to be finalised before me in October 2007 it was necessary to adjourn it further because shortly before the matter resumed before me in October the mother had again been arrested.  This time she was charged with driving under the influence, driving whilst disqualified, and driving an unregistered vehicle.  On this occasion it was alleged that she had a blood alcohol reading of .25 (a significant high reading).  The circumstances were again related to her attending at the Centacare offices for the purposes of handover in relation to the child.

7. Final hearing of the matter was adjourned to await the outcome of the criminal proceedings against the mother.  I have now received the reports prepared for the criminal proceedings in relation to the mother's home detention assessment. 

8. Those criminal proceedings were concluded in early March of this year when the mother was again sentenced (for driving under the influence, driving without a licence, driving while disqualified and driving an unregistered vehicle).  She was sentenced for an aggregate term of imprisonment for two months and seven days, which was suspended on condition that she enter into home detention for two months and seven days.

9. On 22 March 2008 the mother she was again arrested for driving under the influence, driving unregistered and uninsured.  She is currently in Berrimah Women's Prison awaiting sentence for those charges.  These offences occurred in June 2007, October 2007 and March 2008 whilst the proceedings in relation to the parenting orders to be made concerning the child were either about to start in the Family Court or had started in the Family Court and were awaiting final determination.

10. The report from the lawyer for the mother in the criminal proceedings also refers to the fact that, the day after she was sentenced in March 2008, the mother was found to have breached the home detention order by consuming alcohol.  That breach was admitted by the mother in Court on 17 March 2008 but the magistrate took no action.  It appears that her home detention sentence would have expired on 11 May this year had it not been for the fact that the mother was again arrested for driving under the influence on or about 22 March 2008.

11. The facts in relation to those charges need to be seen in the context of the father raising as a serious issue in the Family Court proceedings, the mother's abuse of alcohol.  The matters raised by the father in the proceedings before the Family Court also related to the father's concern about the child being subject to abuse and neglect whilst in the care of the mother and, in particular, the mother placing the child in a vulnerable position. 

12. The offences for which the mother was charged that related to driving under the influence in June and October 2007 were of course offences which occurred at a time closely connected to and, indeed, relating to periods when the mother was driving for the purposes of arranging for the father to spend time with the child or to spend time with the child herself.  The context of those offences bear directly upon the mother's capacity to provide appropriate care for the child.

13. The circumstances in which the mother has been charged clearly indicate that the mother has a need to address her alcohol problem.  In the sentencing reports provided to this Court the mother appears to have made allegations to other parties that her alcohol abuse is in some way related to domestic violence.  The particulars of that domestic violence are not before the Court.  The evidence which I have heard from the father and the mother in relation to issues of domestic violence, and in particular considering the poor standard of the mother's evidence, was such that I prefer the evidence of the father when assessing the relationship between the mother and the father.  It is more probable that the mother's behaviour was aggressive and violent towards the father than the father being guilty of domestic violence towards the mother.

14. The matters which need to be considered, relating to the child's welfare, also relate to the allegations that the mother allowed the child to be exposed to behaviour by the mother and her friends or visitors to the house which was inappropriate.  The mother did not give convincing evidence in explaining away the concerns of the father.  The significant character of the evidence of the mother, particularly during cross‑examination, was her unwillingness or inability to answer the question.  She was frequently found to say she did not know, she did not recall or she did not remember. 

15. I turn to consider a serious part of the mother's evidence before the Court in September 2007.  There was some discussion between the father, myself and counsel for the mother about objections to the questions which interrupted the flow of the evidence, but at one point the mother was asked whether she smacked the child.  She was asked, “Do you smack him?” and she answered, “No.”  After some discussion she was again asked, “So you do smack him?” and her reply was, “Not all the time, [father’s name].”  Later during the evidence of the mother, she was asked:

    “One of the allegations the father put to the Family and Community Services was an allegation that you made threats to kill [the child].  I've heard some evidence that there is a friend of yours who was also interviewed by the Family and Community Services Department about you saying you were going to bury [the child].  Do you remember that allegation?---Your Honour, maybe I say it but I didn't mean it.

    When you were asked by Family and Community Services what you said about burying [the child], what did you tell Miss [G]?---I said it was not true.

    Did you tell her that maybe you had said it but you didn't mean it?---Yes, your Honour.

    You did?  You told her, “Maybe I said it but I didn't mean it”?  Is that correct?---Yes.

    What do you say, if anything, you said to your friend?---Because I thought she was my friend.

    What did you say to her about [the child]?---Maybe it just come out and I say how things are going.  Maybe I might do something.

    Well, what did you actually say?---Maybe I said I was going to kill [the child] before I left Darwin.

    Maybe you said you thought you'd kill [the child] before you left Darwin?---Yes, but I haven't killed him yet.

    What did you tell Miss [G] about that conversation with your friend?---I told Miss [G] I said it but I didn't mean it.  That's why I think she's not here to give evidence.  Then there was something indistinct.”

16. In fact, Miss G did give evidence.  I prefer the evidence of the mother, to the extent that the mother admitted that she did say to her friend that she was going to bury the child so that she could leave Darwin or that she was going to kill the child before she left Darwin.  Her exact words in response to questioning by me were, “Maybe I said I was going to kill [the child] before I left Darwin.”  Later during the evidence I put to Mr Gardiner that the mother had said, “She's given evidence that she may be - she said that she would kill [the child] before she left Darwin.”  It was then put to the mother:

    “Well, you've been asked for an explanation for why you might have said that you would kill [the child] before leaving Darwin?---Did I say “maybe”?  It came out of my mouth, but maybe I didn't mean it, because if I wanted to kill [the child] he'd be already dead.  But I don't.  It's not my type.  He always accused me for things like that, but I'm not ready to kill [the child], no.

    But you're being asked for a reason as to why you would say such a thing? ---It came out of my mouth.”

17. Later in the evidence the mother admitted to telling the child that if he continued to misbehave he would be sent to gaol.  She admitted this.  She was then asked later in evidence as to her method of disciplining the child.

    “I'm asking you to inform her Honour why it is that in that instance you wanted to scare him?---Because if he sent the police, because he knows the police are bad people, when you talk about the police then you might feel, “Okay, I will not do that.  I will fine,” and then you just sit down and do what he has to do.

    You've said in evidence earlier to day that - or you denied in questions coming from [the father] from having a drinking problem.  Do you recall giving that evidence?---Yes.

    What, if anything, do you have to say is a drinking problem?---No.

    No.  The question I'm asking, Ms [Kickels-Rees], is what do you think is a drinking problem?  Describe a drinking problem to her Honour?---No, it's not a drinking problem.  The problem is between me and the father.  So we are using [the child] like another excuse.  If I have one beer or two, then he says I drink a couple; if I drink, he maybe says I drink the whole pub.  So it's between him using my son to be like - I don't know how I can put it he's like.”

18. I then interrupted: 

    “Mr Gardiner, try and rephrase the question, please.  The witness doesn't understand it.

    Mr Gardiner continued:

    Thank you, your Honour.

    Could you describe to the Court how you would describe a person who you think has a drinking problem?  What would they be like?---Okay.  They're drinking.  They would not be able to walk, not be able to take their kids to school, not to cope with the food, not to clean in their houses.  I think that's what they are.

    What, if anything, do you think was wrong with drink‑driving on 17 June 2007?---The night before I went out, I maybe had some drinks to become high.  I don't know.  That's what happened. 

    I'm sorry, I couldn't hear that.  Could you speak up a bit?---I say I went out the night before because I was going to pick up [the child] at another place, so I didn't thought - maybe I didn't thought I was not supposed to drive but I did drive, so I have problems and sometimes things happen.”

19. Earlier in the evidence the mother had denied having any sort of a drinking problem.  The reports in relation to the home detention and criminal proceedings in my view also indicate that the mother has not come to terms with her need to address her abuse of alcohol and the effect that has had upon her ability to provide appropriate care for the child.  I have previously considered her attempts to place the blame for her past behaviour by directing it to some issue of domestic violence.  I repeat that I am not satisfied that the mother has provided appropriate evidence to this Court of any domestic violence which would explain her ongoing abuse of alcohol over the years since she has been separated and living apart from the father.

20. The mother has now discontinued her proceedings, however I have heard many days of evidence and received large numbers of documents.

21. I make those remarks in particular so that the orders which I propose to make are seen in the context of these proceedings but also so that any person required to provide any further assessments in relation to issues which impact upon the welfare of the child and any further judicial officer hearing matters concerning the welfare of the child can consider these proceedings and orders in the right context.

22. I turn to addressing the specific issues of the final orders which the father now seeks in relation to the child.  The child has been in the care of the father now for a considerable period of time, pursuant to orders that I made in relation to the child’s care pending the resolution of the final hearing of the matter.  The father seeks an order that he have sole parental responsibility for the child and that the child live with him.  Those orders are supported by Ms Giacomo, the Independent Children’s Lawyer.  The current circumstances of the mother are such that she remains incarcerated and is awaiting the conclusion of the criminal proceedings concerning the last alleged offences committed in March of this year.

23. Following directions from me, the father sent by facsimile to the Berrimah Prison copies of the amended final orders which he seeks, being orders which were filed on 10 April 2008 at a time when the mother had ceased to be represented by her previous lawyers and also at a time where she had only recently filed a notice of discontinuance.  The father was also directed to serve a copy of the documents upon the mother's lawyer acting for her in the criminal proceedings. 

24. I understand from the father today that both the prison and the mother's lawyer in the criminal proceedings refused to accept service on her behalf.  I have proceeded to deal with the matter in any event, because the views that I have taken in relation to the orders that I propose to make make it appropriate for me to continue to conclude the proceedings in this Court, notwithstanding the difficulties the father has faced in relation to effecting service of the amended application.

1. The father also seeks an order that the mother be prevented from initiating any further legal action in the Family Court or Federal Magistrates Court “until it can be proven that she has overcome her alcohol abuse problems and is in a fit state to care for the child at supervised visits”. 

2. The child support matter will be transferred to the Federal Magistrates Court. 

3. In relation to paragraph 4:

   “The mother complete all necessary documents to allow the child to be issued with an Australian passport within 30 days of final orders being made and these documents to be received by the father within 30 days at his postal address ”

4. The orders which I propose to make in relation to sole parental responsibility and the evidence which I have heard about the mother's refusal to negotiate with the father about orders or to reply to requests from the father make an appropriate order that, if the mother has not provided the father within 30 days of his request the appropriate passport documents, then a Registrar of the Court be authorised to sign those documents, the father be ordered not to remove the child from the Commonwealth of Australia for any period in excess of 30 days, on the basis that the father also provides to the mother at her last known address particulars of his itinerary for any period that the child is absent from Australia.

5. The next order the father seeks is in relation to Centacare:

   “Centacare Northern Territory are not to provide any input, assessments or other services in this or any other future proceedings between the parties.”

6. In relation to the orders for sole parental responsibility for the child and that the child live with the father, I take into account the provisions of the Family Law Act and, in particular, section 60CA which requires the Court to regard the best interests of the child as the paramount consideration. In determining what is in the best interests of the child, the Court must consider those matters which are set out in section 60CC subsections (2) and (3) - namely, the primary considerations and the additional considerations.

7. The primary considerations are significant in this case:

   (a)the benefit to the child of having a meaningful relationship with both of the child's parents;

   (b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

8. The evidence indicates that the child has a good relationship with his father and, notwithstanding the difficulties which have occurred between the mother and father which impacted upon the time the mother would allow the father to spend with the child, the child maintained that good relationship with his father.  The child has now been residing with his father for a period of time.  I am satisfied that those arrangements will maintain a meaningful relationship between the child and his father.

9. The mother has not had an opportunity to spend time with the child recently.  That has been caused by her own behaviour in disobeying the law and most recently disobeying her home detention orders.  It is promising that, notwithstanding the mother's behaviour, the father has indicated in open Court that he is keen for the mother to continue to have a relationship with the child and for the child to benefit from an ongoing relationship with his mother, provided that she is in a fit state to maintain that relationship and that it can be maintained without putting the child’s welfare at risk.

10. A significant factor is:

    “The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence”

    I have already indicated that the mother's evidence was given in a manner which was, at times, inconsistent and contradictory.  Her evidence about the remarks she made to a friend about killing the child so that she could leave Darwin or killing the child before she left Darwin and her response to questioning about how appropriate those comments were, was a very unsatisfactory part of her evidence.  Her explanation for driving while under the influence, at a time when she was going to collect the child from a period of time spent with the father, also calls into question her understanding of her need to behave in a manner which protects the child’s physical and emotional welfare.

11. The additional considerations are still important but less significant, in view of the serious nature of the evidence about the mother's ability to protect the child from harm.  The child was originally in the care of the mother but has more recently been in the care of his father.  He was born in September 2003 and is therefore aged four, going on five.  His views, such as they are, indicate a good relationship with both of his parents, but I take into account his young age.  The nature of the relationship with each of the parents is also a factor which I have referred to earlier. 

12. Another significant factor to be taken into account is:

    The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

13. The mother's evidence was that she was not willing or able to carry on reasonable negotiations with the father about the child and indicated that she was unlikely to change in the future.  This in my view indicates that she was not willing to facilitate and encourage the relationship between the child and the father and, indeed, her evidence generally indicated that she resisted efforts that might otherwise be seen as reasonable to encourage that relationship.

14. The father has, from time to time, expressed his frustration and perhaps anger about the mother's lack of readiness to pay for or engage in travel between the Kakadu area and Darwin so that the parties could both enjoy an ongoing relationship with the child.

15. Item (d) is:

    The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his parents or other persons.

16. The child has undergone significant change recently from the care of his mother to the care of his father.  I do not have any direct independent evidence about the effect of those changes.  I am satisfied, however, that the father will take appropriate steps to reduce any disadvantages to the child caused by those changing circumstances.

17. The practical difficulty and expense of a child spending time with and communicating with another parent is another factor.  The father resides in the Kakadu area, close to his employment.  The mother was residing in rental accommodation in Darwin.  The mother is now incarcerated in Berrimah Prison awaiting the outcome of her criminal charges, and as such there is now considerable practical difficulty and expense.  The mother has, at this stage, however, not made any application that the child spend time with her in prison.  The father has indicated that he will take steps necessary to ensure the child spends time with the mother, provided that those arrangements are such as to ensure that the mother is in an appropriate state to spend time with the child and that the child’s welfare is not at risk.

18. The capacity of each of the child's parents to provide for the needs of the child, including the emotional and intellectual needs is also a significant factor.  Whilst the father has, at times, been assertive and perhaps even in some contexts considered abrupt in handling himself unrepresented in these proceedings, I am satisfied that that arises out of his frustration with the length of time these proceedings have taken, his frustration with the mother's refusal to negotiate, and his frustration with various government authorities whilst he has been attempting to conclude these proceedings. 

19. I am satisfied, notwithstanding the father's attitude to those matters, that he does have a high level of capacity to provide for the child’s emotional and intellectual needs.  Indeed, when giving evidence about the child, oral evidence before me, I was impressed with his understanding of the child’s emotional and developmental needs and with the approach he took to his relationship with the child and, indeed, the child’s relationship with the mother in what could be described as difficult circumstances.

20. Item (g) is:

    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.

21. The mother raised in the proceedings the need to ensure that the child had an understanding of his mother's cultural background. I am satisfied that the father bears in mind these factors and will encourage the child to understand and, where appropriate, participate in cultural activities associated with both his background and the mother's cultural background.

1. Item (i) is:

   The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

2. I have already indicated that I consider the mother lacked an appropriate attitude to the responsibilities of parenthood.  I am satisfied that the father has an appropriate attitude to the child and to his responsibilities as a parent and that he has demonstrated this over a long period of time.

3. In relation to (j) “any family violence”, there were disputed allegations made about violence.  I am satisfied that the mother was not able to provide reliable evidence to the Court that there was significant family violence brought about by the father's behaviour as distinct from the mother's behaviour, during the relationship or since the relationship.

4. In relation to (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 ‑

5. This is a significant factor in this matter, bearing in mind that proceedings have been on foot in the Federal Magistrates Court and this Court for a considerable period of time.  That impacts particularly upon the orders which the father seeks (that the mother be prevented from initiating any further legal action in this Court or in the Federal Magistrates Court until it can be proven that she has overcome her alcohol abuse problems and is in a fit state to care for the child at supervised visits and the order that he seeks preventing Centacare Northern Territory from having any input or conducting any assessments or providing any other services in relation to any other future proceedings between the parties).

6. In this case, perhaps even more so than most cases, that 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.  These proceedings have taken a considerable toll on the emotional and psychological wellbeing of the parties.  The father has been representing himself and has been required to travel a considerable distance and arrange his employment around the ongoing litigation.  I am of the view that it is always in the best interests of a child for proceedings between the child's parents to be brought to an end so that the parents and the child can devote all their attention to the future welfare of the child and the child's development.

7. The mother has discontinued the proceedings at a very late stage when the evidence had closed and would have been concluded had it not been for her further arrests.  It would not be appropriate nor would it be seen to be doing justice to the case if the mother were therefore able to recommence proceedings, thinking that she could control the outcome and timing of the proceedings in that way.

8. I understand the father's frustration with the process which he has referred to many times this morning - namely, that he believes he will be back in Court within six months, with the mother claiming that she is now better and wanting to change the parenting orders. Whilst I say that I understand his frustration, the Court nonetheless has to be seen to be ensuring that justice is done to all of the parties and, in particular, that the Court applies the law - both the Family Law Act and the principles of common law and equity.

9. In relation to the order that the father seeks preventing the mother from initiating any further action in this Court until she can prove certain factors, I refer to section 118 of the Family Law Act which relates to the Court making orders which prevent a person without leave of the Court from instituting proceedings of a particular kind. Section 118 says that the Court may, if it is satisfied that the proceedings are frivolous or vexatious:

   (a)      dismiss the proceedings;

   (b)      make such order as to costs as the Court considers just; and

   (c)if the Court considers appropriate, on the application of a party to the proceedings, order that the person who instituted the proceedings shall not, without leave of a Court having jurisdiction under this act, institute proceedings under this act of the kind or kinds specified in the order;

   and an order made by a Court under paragraph (c) has effect notwithstanding any other provision of this act.

10. The orders which the father seeks do not fall within the provisions of section 118.

11. In these proceedings the Court has not dismissed the proceedings by the mother, save and except of a formal dismissing when the mother discontinued the proceedings. Nor could the Court at this stage of the proceedings determine that the mother's proceedings were frivolous or vexatious. The provisions, therefore, of section 118 do not apply.

12. That is not the end of the matter, however, because in my view the Court has a wide power to make orders in relation to the proceedings by way of ensuring that the orders made are ones which are in the best interests of the child.

13. In relation to preventing the mother from bringing further proceedings, however, it is accepted that the Court would only make an order preventing a person bringing further proceedings in exceptional circumstances, as this clearly impacts upon the parties' rights to have access to the Court.  Having said that I accept the father is concerned about being required to attend in the immediate future to further proceedings brought by the mother, I am not satisfied that this is one of those matters whereby it would be reasonable to place an injunction on the mother preventing her from bringing proceedings, unless she could prove “that she has overcome her alcohol abuse problems and is in a fit state to care for the child at supervised visits”. 

14. Nonetheless, I think it should be made clear for the purposes of this judgment that the father is right to expect that the mother will be able to provide independent, clear evidence that the mother has overcome the alcohol problems which are evidenced by her ongoing criminal charges and that she is also in a fit emotional and psychological state to care for the child, even under supervision, if it was decided that supervision was necessary.

15. The history of this matter will require any Court considering making an order for the mother to spend time with the child in contested proceedings to be satisfied that the evidence the mother provides in relation to her capacity to provide both physically and emotionally safe and secure arrangements for the child needs to be evidence which is accepted not only by the Court but also provided in a way that satisfies the father that all appropriate inquiries and assessments have been made.

16. The father has expressed concern that the assessments prepared for the criminal proceedings make reference to the mother blaming her behaviour on domestic violence.  It would not be sufficient in my view for any future assessments to simply attribute the mother's alcohol abuse to her allegation that she has suffered some form of domestic violence in the past.  Rather, it would be more appropriate for anyone preparing such a report to hear not only from the mother but also from the father and other persons having regular dealings with the mother, to ascertain the basis of the mother's allegations and not simply to accept them because the mother makes an allegation.  I say that because of the unsatisfactory nature of the evidence that the mother provided to this Court and to the concerns that the Court would always have about the need to provide appropriate protection for the child.

17. The mother is, therefore, in a position where she would not be wise to commence proceedings in this Court, or any other Court having jurisdiction in relation to issues concerning the child, without first ensuring that she has obtained independent evidence from an appropriate qualified person which is obtained with the consent of the father.  Providing evidence, otherwise than by way of a single agreed expert, would in this case cause the Court serious concern.

18. A person providing treatment can provide their report, but in this instance the Court should be wary of acting on any treating report only.  It would be my strong recommendation that in future, if the mother is to apply for a change to the parenting orders, the Court needs to consider the evidence of a single agreed expert as to the mother's capacity.

19. In relation to the Centacare orders that the father seeks, the father has filed an affidavit annexed to which are the case notes of Centacare, and he has referred to those case notes in his submissions to me.  The case notes indeed indicate that the mother behaved in an unsatisfactory way during the time spent with the child, particularly on 3 February 2008 when it is reported that the mother grabbed the child and pulled his arm and pulled him up roughly for no apparent reason.  The mother was described on that occasion as seeming very tense, and then yelled at the child to hurry up and finish his drink.  It was also referred to that she did not make eye contact with the child.

20. The notes also referred to the concerns which the person conducting the supervision had as to the mother's consumption of alcohol on 23 December 2007.  The notes indicate that the supervisor was “suspicious about alcohol condition”, and the mother had apparently explained that she had drunk one beer that morning, but that she is “feeling low because of hangover from the previous night”.  The notes continue to say that it was explained to the mother how important it was for her to reduce alcohol, and the notes continue to explain the concerns and observations made by the person supervising contact on that occasion.  The notes indicate that there were other concerns of perhaps a less serious nature during the observations.

21. The father is asking that Centacare not provide any input, assessments or other services for any future proceedings.  In this matter the issue of having a suitably qualified single expert who has not had dealings with one or other of the parents (to the extent that the confidence of the other party might be seen to be in doubt) would be important.  The Court will be aware on the next occasion that the father has had some difficulty with Centacare (not only because of their interpretation of their role in providing time spent with the child with a person who may have consumed alcohol shortly before undertaking the contact time but also because of the difficulties that the father has had in obtaining Centacare's response to appropriate subpoenas for records).

22. Any Court considering any further application in this matter needs to consider afresh the circumstances at the time of the application, but the Court should carefully consider the impact of unnecessary proceedings upon the welfare of the child and the father.

23. In relation to the orders that the father seeks in relation to Centacare, I do not propose to make any orders at this stage, but recommend that anyone hearing further applications in relation to this child give serious consideration to ensuring that the proceedings are not prolonged or protracted because of the tendency of one or other of the parties to obtain evidence which may be automatically, or almost automatically, considered to be unsatisfactory by one of the parties.

1. In relation to the orders that I therefore propose to make, I have already indicated that I consider it appropriate to make orders in relation to the issue of passports and will make those orders.  I have given my reasons in relation to the orders sought by the father concerning the further institution of proceedings and will give the Independent Children’s Lawyer and the father permission to provide copies of my reasons in this matter to any government department in the Northern Territory or any Commonwealth government department concerned with the welfare of children, so that the background to this matter can be clearly understood by those who might have to deal with the matter in the future.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  7 May 2008