S and P
[2001] FMCAfam 226
•26 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & P | [2001] FMCA fam 226 |
| PARENTING ORDERS – contact – best interests of children – applicant the father of one of two children – biological father of the other child undisclosed – drug use – violence issues – adequacy of parenting skills – opposition of mother to any contact. |
Family Law Act 1975 (1975), ss. 60B, 65E, 65L, 68F
B v L [2001] FMCA fam 84
K v B (1994) FLC ¶92-478
| Applicant: | S |
| Respondent: | P |
| File No: | CZ 2120 of 2001 |
| Delivered on: | 26 October 2001 |
| Delivered at: | Canberra |
| Hearing Dates: | 23 & 24 October 2001 |
| Judgment of: | Driver FM |
REPRESENTATION
| Applicant in Person |
| Counsel for the Respondent: | Mr S Gill |
| Solicitors for the Respondent: | Legal Aid Office ACT |
ORDERS
(1)THAT the child, B (“the son”), born 4 December 1992, reside with the respondent mother.
(2)THAT the applicant have contact with the son as follows:
(a)by exchange of written correspondence, cards and gifts;
(b)if requested by the son, such face to face and/or telephone contact as is agreed to by the mother provided that such agreement shall not be unreasonably withheld;
(3)THAT the child, N (“the daughter”), born 26 August 1999, reside with the mother.
(4)THAT the applicant father have supervised fortnightly contact with the daughter for not less than two hours per fortnight at a time and place to be agreed between the parties, with supervision to be provided by a person or persons acceptable to the mother, provided that that agreement and acceptance shall not be unreasonably withheld.
(5)THAT the applicant have telephone contact with the daughter at all reasonable times but, in default of any agreement, between 5.00pm and 5.30pm each Sunday, such contact to be initiated by the applicant.
(6)THAT the applicant be restrained from using cannabis or non prescription amphetamines on any day when he is exercising contact.
(7)THAT on condition that the applicant:
(a)provides a qualified medical practitioner or his/her nominee with a sample of his urine for the purposes of non prescription drug testing on at least one occasion in each month over a six month period and that the applicant provides to the mother copies of all certificates obtained from such testing which verify that the applicant has not used non prescription drugs; and
(b)attends a parenting course or courses approved by the Director of Court Counselling of this registry of the Court covering practical parenting skills and anger management and provides to the mother proof of his completion of that course or courses.
The applicant shall have and the mother shall give additional contact with the daughter as follows:
(a)outside school holiday periods every second weekend commencing on the first weekend, after the applicant complies with the conditions precedent to this order, from 10.00am until 5.00pm on Sunday;
(b)for not less than five hours on Father’s Day if that day does not otherwise fall on a contact day;
(c)for not less than three hours on the daughter’s birthday if that day does not otherwise fall on a contact day; and
(d)on Christmas Day at such times and places as are agreed to by the mother, provided that such agreement shall not be unreasonably withheld.
THAT the applicant father have contact with the daughter at such other times and places and subject to such other conditions as may be agreed between the parties.
THAT both parties be restrained from and an inunction is hereby granted restraining each of them from:
(a) discussing these proceedings with either of the children; and
(b) denigrating each other in the presence of the children.
THAT pursuant to s.65L(1)(a) of the Family Law Act 1975 these parenting orders be supervised by a family and child counsellor nominated by the Director of Court Counselling of this registry of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
ZC2120 of 2001
| S |
Applicant
And
| P |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the applicant father (“the applicant”) for parenting orders, in particular, orders for contact with two children: B, born 4 December 1992 (“the son”) and N, born 26 August 1999 (“the daughter”). The application is opposed by the respondent mother (“the mother”).
Background
The applicant and the mother commenced a relationship about 13 years ago. Their relationship continued, despite several separations until 1996 when they ceased cohabiting. The son was conceived during a period of separation and is not the applicant’s biological child. The son is the biological child of the mother. The biological father has not been named. The daughter was conceived during a brief and final reconciliation. The daughter is the biological child of both parties. The applicant is 37 years of age and lives in Goulburn. The mother also lives in Goulburn and is 31 years of age. Both children reside with the mother. Both parties have had other relationships at various times. According to the applicant he had unrestricted contact with both children until October 2000. Since the commencement of these proceedings there have been various interim contact orders made. The applicant seeks to increase that contact. Pursuant to the interim court orders currently in place the applicant has no contact with the son and only limited supervised contact with the daughter.
Even that limited supervised contact has proved problematical. Supervision had been provided by the Goulburn Family Support Service Inc but on 9 October 2001 the co-ordinator of that Service advised the parties that the services of that organisation were being withdrawn due to the attitude of the mother. There had, during an earlier series of contact sessions, been a serious incident caused by the applicant. The present position is, therefore, that notwithstanding the interim orders of this Court there is currently no effective arrangement for contact between the applicant and either child.
The applicant’s case
The applicant seeks the following orders:
(1)that the son have reasonable contact with him as may be agreed between the parties including but not limited to:
(a)outside school holiday periods every other weekend from 3.00pm Friday to 3.00pm Sunday;
(b)for one half gazetted New South Wales school holiday periods;
(c)on Father’s Day if Father’s Day does not otherwise fall on a contact weekend;
(d)for a period of three hours on the child’s birthday in each year;
(e)at all reasonable times by telephone.
(2)That the daughter have reasonable contact with him as may be agreed between the parties including but not limited to:
(a)Outside school holiday periods every other weekend from 3.00pm Friday to 3.00pm Sunday;
(b)for one half gazetted New South Wales school holiday periods;
(c)on Father’s Day if Father’s Day does not otherwise fall on a contact weekend;
(d)for a period of three hours on the child’s birthday in each year;
(e)at all reasonable times by telephone.
The applicant relies upon his own affidavits made on 15 February 2001, 25 June 2001 and 17 September 2001. He also relies upon affidavits by two male acquaintances, both made on 19 June 2001. Those deponents are friends of the applicant and deposed as to their knowledge of the applicant as a father. The applicant also sought to introduce into evidence a video tape showing him interacting with the son over a period of three to five years. I accepted as an exhibit a written transcript describing the contents of that video. I elected not to view the video as I was satisfied that the applicant had already presented sufficient evidence that he had had a positive relationship with the son between 1995 and at least 1996. I also accepted as an exhibit the letter from the co-ordinator of Goulburn Family Support Service Inc to the applicant dated 9 October 2001. The contents of that letter are highly prejudicial to the mother, the letter is not sworn evidence and its author was not available to be cross-examined. I accepted the tender of the letter only on the basis that it provided evidence that there had been problems in the provision of supervised contact at the Goulburn Contact Centre and that the services of that centre had been withdrawn because of those problems.
The applicant’s case is that he has always been a father to the son, even though he is not the biological father. The applicant doubts that the mother knows who the biological father is. He says that he has been a caring and supportive father to both children, that he cares deeply about them and that he wishes to play a continuing role in their lives.
The applicant and his deponents were all cross-examined on their affidavits. While I am satisfied that the applicant is in the main an honest and reliable witness it was apparent that he was on his guard when giving evidence and was at times hesitant and evasive. I drew the conclusion that the applicant’s evidence was influenced by his desire to present himself in the most favourable light possible.
The mother’s case
The orders sought by the mother at trial were as follows:
b)that there be no order as to residence of the son;
c)that contact between the applicant and the son be only in the form of the exchange of written correspondence, cards and gifts;
d)that the daughter reside with the mother;
e)that contact between the applicant and the daughter be only in the form of the exchange of written correspondence, cards and gifts.
The mother’s case is that she and the applicant have never lived in a full family relationship and that the applicant is not a fit person to play a fathering role to the children. The mother alleges that the applicant is unreliable, violent, a long-term drug user, that he has a extensive criminal record and that he lacks parenting skills.
The mother relies upon her own affidavits made on 16 February 2001, 17 July 2001 and 18 October 2001. She was cross-examined on her affidavits. I found the mother to be generally a more impressive witness than the applicant. She was more direct, open and convincing in her answers to questions. Nevertheless, I concluded that the mother, like the applicant, chose to place stress on facts and circumstances most favourable to her case and to minimise unfavourable aspects. For example, she had deposed that the applicant repeatedly burned the children with cigarettes. This created an impression of sadistic behaviour by the applicant. Under cross-examination by the applicant, the mother admitted that these incidents were not deliberate but the result of the careless dropping of ash from cigarettes.
The mother believes that there are other males who can play a fathering role in the children’s lives. She refers to her father and brother who live in the Goulburn area. She also claims to know the identity of the biological father of the son although she admitted that she currently has no proof. She also admitted that this person had never met the son and did not know of his parentage.
Family report
The parties are unable to agree on any aspect of the orders sought. I received a family report prepared on 16 July 2001 by the Family Court Counselling Service. That report dealt with both children. After hearing from the parties in relation to that report I ordered the preparation of a supplementary report directed to a deeper analysis of very strong views expressed by the son that he wanted nothing to do with the applicant. That supplementary report was prepared on 24 August 2001. Both reports were received as evidence.
Relevant law
I referred to the relevant principles in a contact case in B v L [2001] FMCA fam 84. Contact orders are parenting orders. They arise in proceedings that result from Part VII of the Family Law Act 1975 (Cth) (“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 children in this case remains the paramount consideration. Nevertheless they are important and I must pay due regard to them. I also encourage the parties to think carefully about these principles when they are dealing with each other in future on matters concerning the children.
In deciding the 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.
Section 68F – determining the best interests of the children
The childrens’ wishes
The daughter is only two years of age and understandably has not expressed any particular wishes concerning contact with the applicant. The son is almost nine years of age and has expressed his views in the strongest possible terms. It was abundantly clear from the first family report that the son wished to have nothing to do with the applicant. He told the counsellor that the applicant was not his father and that he hated him. He said “he’s always mean to me, never nice”. The counsellor asked, “How come he is mean to you?” to which the son replied, “Maybe he doesn’t like me”. He said this made him feel sad. The son was well aware of these court proceedings and adopted a partisan approach in favour of his mother. The son referred to newspaper reports about the applicant (presumably his criminal convictions) and said this caused him difficulties with his friends. He referred to the applicant’s cannabis use and said that this was a bad thing.
In accordance with the terms of reference contained in the Court’s orders the supplementary family report addressed the following issues:
a)The strength of the son’s wishes and the length of time they have been held. The son maintained intense negative views towards the applicant. He showed strong attachment to his mother and an attachment to her brother and mother. He said that he would run away if ordered to have contact with the applicant. He rejected any suggestion of having contact with the applicant for even a few hours on a Saturday saying, “No, his drug mates would be there”. The supplementary family report does not establish how long these views have been held by the son. The other evidence before the Court indicates that they are relatively recent.
b)The degree of maturity and level of understanding exhibited by the son in relation to his wishes. The son is considered to be “well below” age grade for his learning achievements. Nevertheless, the counsellor assessed him as having the maturity and level of understanding commensurate with primary school aged children and that he was able to present his wishes. The counsellor noted that the son appeared to have a greater understanding of some issues than necessary for his age, suggesting exposure to such issues.
c)Whether or not the son’s wishes have been influenced by any other person or persons and how they were formed. There is no doubt that the son’s wishes have been influenced by his mother. She admitted it in giving evidence. The counsellor noted a virulent dislike by the mother of the applicant and a firm belief on her part that the applicant may harm the children. The counsellor noted that the son is close to his mother and naturally prone to her influence and emotions. It is noteworthy that the counsellor has quoted the son as using adult language in expressing his views, notwithstanding that he is regarded as having learning difficulties. The son criticised the co-ordinator of the Goulburn Family Support Centre because she had allegedly chosen the applicant’s side. I have no doubt that the mother has been a heavy influence in the formation of the son’s views. I asked questions of the counsellor on this point when she was cross-examined on her report. She expressed a view that while the son may have been using language suggested to him his views were genuine.
d)Whether or not the son’s wishes have been influenced by any irrelevant matters. The counsellor found it difficult to comment on this issue but it was apparent that the son has become intimately concerned with the conduct and possible outcomes of these proceedings.
The son is mature enough to express his wishes and has done so clearly. He has been subject to his mother’s influence in formulating his wishes but they are sincerely and intensely held wishes. I must give due weight to those wishes.
The nature of the childrens’ relationships
The mother has sought to downplay the extent and quality of the applicant’s relationship with the children and the applicant has somewhat overplayed it. It is clear that the applicant did play the role of a father to the son until at least 1996, when the parties ceased cohabiting. Thereafter, contact between the applicant and the son began to decline and declined markedly after 1997. There has been virtually no contact between the applicant and the son over the past year. A contact session was arranged between the applicant and the son for the purposes of the preparation of the supplementary family report. The counsellor reported that the son conducted himself in a formal, controlled manner and appeared to be mature beyond his years. No signs of distress were noted on the part of the son but the applicant was noticeably nervous and distressed at times. The counsellor drew the conclusion that there had been a paucity of positive relationship between the two in the past and that the son was unforgiving of the applicant. The counsellor, however, did not have the advantage of seeing all the evidence that I have before me. On the basis of all of the evidence I have concluded that there was a positive relationship between the son and the applicant, at least until 1996 but that that relationship has now degraded, probably beyond restoration.
One can speculate on the reasons for this dramatic change. The parties gave evidence that when they ceased cohabiting in 1996 the mother made application to the Child Support Agency (“the CSA”) for an assessment in respect of the son and named the applicant as the father. She admitted that this was a lie because she knew at the time that the applicant was not the father. Nevertheless, he had fulfilled the role of the father to that point and the mother may have concluded that he should continue to carry that responsibility. The CSA made an assessment requiring the applicant to make payments. In response, the applicant obtained a DNA test which showed that he was not the biological father. He instructed his solicitors to notify the CSA of this and to obtain a refund of payments made. As a consequence, the mother was required to repay approximately $2,000 which the applicant used to buy himself a car. It is quite probable that the mother was embittered by this experience and commenced an evolving process of rejection of the applicant as a partner and father, which she has transmitted to the son.
The applicant gave evidence that he had regularly provided financial support to the mother but his credibility on this point suffered badly under cross-examination.
The applicant presented as evidence of his relationship with the son and the daughter a large number of birthday, Father’s Day and other cards he has received from them and kept. On analysis, it was established that most of these cards were received prior to 1997, many of them were written by the mother and all of them were sent at the instigation of the mother. Understandably, when the mother rejected the applicant finally the cards ceased.
I have concluded that the applicant has a sincere attachment to the children but, in the case of the son, that attachment is no longer reciprocated. It is apparent from the original family report that the relationship between the applicant and the daughter appears normal although specific issues have been raised by the mother which I will deal with later.
The mother has a strong and protective relationship with the children. The family reports and other evidence indicate that at times the mother is over protective. The son has taken cues from his mother and has begun to develop a protective relationship with his sister. There is unchallenged evidence from the mother that the son has a good relationship with her parents and brother. The applicant also has relatives in the Goulburn area but I have no evidence of the children’s relationships with them. I place little weight on the evidence of Mr Coe and Mr Tivey as their knowledge was superficial and dated.
The likely effects of any changes in the childrens’ circumstances
It is abundantly clear that the mother is strenuously opposed to the applicant having any face to face or telephone contact with the children. There is currently no viable arrangement for any such contact. The applicant has been unable to secure any worthwhile contact with the son for at least 12 months and the son has rejected him. The supervised contact with the daughter has been problematic and is not currently continuing, primarily due to the attitude of the mother.
While not going so far as to recommend that there be no contact between the applicant and the son, the counsellor has drawn attention to the potential harm that could be caused to the son if he is forced to have contact with the applicant against his wishes. This is a real risk. The counsellor considers and I accept that the vehemence of the son’s views is in some degree attributable to his perception that he is being pushed into contact that he does not want. In the circumstances, compelling the son to have contact with the applicant is a dangerous course.
It is clear from the evidence that the key to any useful contact between the applicant and either of these children is the attitude of the mother. If she maintains her present attitude any orders the Court makes will be difficult to enforce. On the other hand, if she is supportive of contact then useful contact between the applicant and the daughter could be developed and the son may be influenced to modify his views.
Practical difficulties and expense associated with contact
The parties both live in Goulburn, as do the children. They both have other family members in the vicinity. As I have already noted, the main difficulty confronting any contact is the attitude of the mother. The Court should not allow a hostile and obdurate parent to frustrate contact orders that are in the best interests of the children. Nevertheless, the Court must deal with the reality of parents’ attitudes, whether reasonable or not in attempting to formulate a sustainable regime of contact.
Capacity of the parents to meet the childrens’ needs
The mother presents as a loving and caring parent who is somewhat overprotective of her children. I am satisfied that she is capable of meeting their physical needs. She is also capable of meeting their emotional needs, albeit that she is prone to transmit to them her own anxieties and prejudices. The mother has given evidence that the applicant has done little to provide for the physical care of the children and that he has only provided occasional and generally inconsequential financial support. The applicant disputes this. I prefer the evidence of the mother on this issue, given my assessment that the applicant has been more blatant in attempting to portray himself in a favourable light. There is reliable evidence that the applicant has in the past played a role as a carer of the son and that he has played a more limited role as a carer of the daughter. However, apart from play activities, I am concerned of the paucity of evidence supporting any conclusion that the applicant has demonstrated a capacity to perform an unsupervised parenting role. The applicant has not to this point exercised unsupervised overnight contact with the children.
The childrens’ maturity, sex, background and other characteristics
The daughter is a toddler who appears in the family report and other evidence to be normal, apart from suffering an allergic reaction to brown chocolate and possibly other substances.
The son is a primary school aged boy with some learning difficulties who has been subjected to emotional stress. The family reports indicate learning and behavioural problems exhibited by the son at school. It appears that the present proceedings may be a factor adversely impacting upon the son’s behaviour.
The need to protect the children from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour
The mother has given evidence that the applicant has been violent and abusive towards her and threatening towards other men he saw as competing partners. The son reported to the counsellor that the applicant had been “mean” to him and that the applicant smacked him. The son’s views are probably transmitted via the mother who gave evidence of excessive corporal punishment by the applicant. As I have previously noted, evidence by the mother of the applicant burning the children with cigarettes was exaggerated and her evidence of his corporal punishment may also be exaggerated. On the other hand, the applicant admitted losing his temper and using abusive language during a supervised contact session with the daughter. I have concerns about his ability to control his anger
The applicant admitted being a cannabis user for approximately 15 years and has also admitted amphetamine use. There is corroborative evidence that he associates with other drug users. He has at least five convictions for drug related offences. The applicant gave evidence that he has ceased using illicit drugs and relies upon a certificate of a negative drug test in February 2001. I have no reliable evidence apart from the applicant’s word that he is not currently using drugs. Given his history and associations there remains a significant risk that the children would be exposed to illicit drug use in his care and that he may, through the use of drugs, be unable from time to time to properly care for the children.
The mother gave evidence that the applicant cannot be trusted to appropriately care for the daughter. She referred to an incident during a recent supervised contact session when the applicant brought “Mini M&Ms” to the contact session. He also brought the daughter a white chocolate “Freddo Frog” for the daughter to eat and said that the Mini M&Ms were for him to eat. He knew of the daughter’s allergy but still allowed her to play with the Mini M&Ms during the contact session, even though he should have been aware that they probably contained brown chocolate. The applicant denied in evidence that the daughter ate any of the Mini M&Ms but the mother gave evidence that when she collected the daughter there was a brown stain on her clothing that appeared to be chocolate and that the daughter subsequently suffered an allergic reaction. I accept her evidence.
The attitude to the children and responsibilities of parenthood demonstrated by each of the childrens’ parents
As I have already noted, the mother is a good and loving parent but somewhat overprotective. She is capable of caring for the children in an appropriate manner.
I have assessed the applicant as having an incomplete understanding of his parental responsibilities. I am satisfied that he has a genuine affection for both children although the evidence suggests that he has a stronger attachment to the son. I am not convinced that the applicant has to date successfully dealt with his drug history so as to remove the risk factors that I have referred to earlier.
Any family violence involving the children or a member of the childrens’ family, and family violence orders
I have previously referred to the mother’s evidence of the applicant’s violent and abusive nature. This evidence is uncorroborated with the exception of evidence of verbal abuse, and I consider the mother’s evidence on this issue exaggerated. Nevertheless, I accept that the mother has demonstrated that the applicant has an inadequate ability to control his anger in the presence of the children, even during supervised contact at a contact centre. The hostility of the mother towards the applicant is an exacerbating factor in this regard.
Whether it would be preferable to make an order that will be least likely to lead to the institution to further proceedings in relation to the children
Both parties seek final orders. It would be in the interest of both parties if contact issues could be finally resolved. There is also evidence that the son has been inappropriately involved in the litigation and he would benefit from a final resolution as there is evidence that the court proceedings are impacting adversely on him. The history of these proceedings, however, makes me pessimistic about the willingness of the mother to comply with contact orders. There has already been one contravention application which I was able to deal with without hearing that application. The orders that would be least likely to lead to further litigation would be the orders sought by the mother. I do not accept, however, that the best interests of the daughter would be served by denying her contact with the applicant. The Court should not allow a parent to frustrate orders that the Court finds to be in a child’s best interests. This suggests that counselling may be required to minimise the likelihood of further litigation arising from contact orders.
Any other fact or circumstance the Court thinks relevant
The supplementary family report dealt with the likely effect upon the son and his development of confirming to him that the applicant is not his biological father and the likely effect upon him and his development of disclosing to him the identity of his biological father. The son said to the counsellor that the applicant was not his “dad”. He said with conviction, “He’s not my real dad”. He added, “J has been more of a biological father to me”. The reference to “J” is to a friend of the mother’s who is apparently not the biological father. The son apparently found out about biological fathers from a friend of his who is a test tube baby. According to the mother’s evidence she has not told the son that the applicant is not his father and she has not told him who his biological father is. Given the statements made by the son I have reason to doubt her evidence on the first point. It may be, however, that the son’s rejection of the applicant is the basis for his statements. The mother says that she knows who the biological father is, but that she cannot currently prove it. The son has not been told. Neither has the person believed by the mother to be the father. He has apparently never met the son. The counsellor has adopted a very cautious approach to the question whether and if so when, and how, the son is informed of his true parentage. The counsellor has recommended that the mother obtain the services of a counsellor to assist with this process. I agree.
The recommendations in the original family report were that the daughter continue to have contact with the applicant in accordance with the orders for supervised contact then in force with a view to increasing the level of contact over time to coincide with the daughter’s development and maturity. Overnight contact was not recommended at this time. The counsellor endorsed the original report in relation to the daughter under cross-examination.
The supplementary family report and cross-examination of the counsellor indicates that it would be dangerous and unwise to require the son to have contact with the applicant. The family report concludes that (whatever may have existed in the past) there is not now a sustainable relationship between the son and the applicant. If the applicant were the natural father of the son with something to bring to the relationship then there would be some point to an attempt to foster and ongoing regime of contact. I find, however, that the applicant has insufficient to offer the son to warrant the imposition of face to face or telephone contact against the wishes of the son and the mother.
In K v B (1994) FLC ¶92-478 the Full Court of the Family Court dealt with a case of some relevance to these proceedings. Kay J, at page 80,968 said that:
… the denial of an opportunity of a relationship between the child and his father is a conclusion which the Court should only reach with the utmost reluctance…
Much of the psychological literature and research claims that it is almost impossible to overstate the importance to the child of the maintenance of an ongoing relationship with their [non residence] parent.
His Honour stressed the desirability of at least some contact between a child and father in all but the most exceptional circumstances. His Honour noted that even where a parent has been abusive, contact in a safe setting allows a child to come to terms with the abusive parent and may serve to avoid destructive repetitions later in life. This leads me to conclude that there should be at least a level of contact which permits the son to maintain an understanding of the role that the applicant has played in his life, even though the applicant is not his biological father. In addition, the orders of the Court should be framed so as not to present an obstacle to more extensive contact should future circumstances permit it.
There should be telephone contact and a continuation of the regime of limited supervised contact between the applicant and the daughter until such time as the applicant has acquired better parenting skills and has more clearly overcome his past drug use. As I have previously noted the practical difficulty lies with arranging supervised contact that is going to be effective and that the mother will not attempt to frustrate or avoid. Counselling is going to be required in order to maximise the chances of the Court’s orders being adhered to. Counselling will also be required if the son is to be informed of his true parentage (as I think he should be) and if he is to be introduced to his biological father. Because no practical supervised contact arrangements have been suggested by the parties and no practical arrangements are obvious from the material the orders will have to be sufficiently flexible to allow those arrangements to be developed.
I have sought to formulate orders which recognise but do not subsume themselves to the mother’s hostility to the applicant and any contact with him. The orders also recognise the need for the applicant to improve his parenting skills, to manage his anger and to establish more reliably that he has ceased his drug use. The orders are clearly less than the applicant hoped for and are more than the mother was prepared to give. The orders are also not as clear cut as is commonly the case but, in the circumstances they are the best that can be achieved in the best interests of the children.
The mother sought no residence order for the son on the basis that it would be otiose. I am unwilling, however, to leave that issue open.
I will also make an order restraining the parties from discussing these proceedings with the children and from denigrating each other in the presence of the children. The mother has been foolish and short sighted in this regard and she must desist.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 October 2001
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