Shakespeare and Colonel

[2011] FamCA 374

FAMILY COURT OF AUSTRALIA

SHAKESPEARE & COLONEL [2011] FamCA 374

FAMILY LAW – CHILDREN – Living with – spending time with

Family Law Act 1975 (Cth)

APPLICANT: Ms Shakespeare

RESPONDENT: Mr Colonel

FILE NUMBER: LEC 256 of 2007

DATE DELIVERED: 14 April 2011

PLACE DELIVERED: E Town

PLACE HEARD: E Town

JUDGMENT OF: Bell J

HEARING DATE: 12 & 13 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S. Priestly of Counsel

SOLICITOR FOR THE APPLICANT: G J Donaghy & Co of E Town, New South Wales

COUNSEL FOR THE RESPONDENT: Mr Smart of Counsel

SOLICITOR FOR THE RESPONDENT: Paul Denmeade & Co of E Town, New South Wales

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Theobald of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW, E Town

Orders

1. The children B born … 1999, C born … 2001 and D born … 2002 live with the mother.

2. The mother have sole parental responsibility for the children.

3. The father spend time with the children each alternate weekend:

   3.1At the E Town Contact Centre or any other contact centre in the E Town area for the maximum period allowed  at that centre;

   3.2The Independent Children’s Lawyer is at liberty to consider any person who may be available as a supervisor for the purpose of extending the time the father spends with the children.

4. The appointment of the Independent Children’s Lawyer continue for a period of twelve (12) months from the date of this Order.

5. Any allegation of abuse or contravention be made in the first instance to the Independent Children’s Lawyer.  The Independent Children’s Lawyer shall report any allegation to the appropriate authority.

6. The child B attend counselling as soon as practicable such counselling to be arranged by the Independent Children’s Lawyer.

7. The Mother is to comply with any recommendation of the Independent Children’s Lawyer as to counselling of the children.

8. The Independent Children’s Lawyer have liberty to relist the matter on seven (7) days notice to all parties and to the Court.

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

FAMILY COURT OF AUSTRALIA AT E TOWN

FILE NUMBER: LEC 256  of 2007

Ms Shakespeare

Applicant

And

Mr Colonel

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Mr Colonel for parenting orders in relation to three children, the offspring of his relationship with the respondent, Ms Shakespeare.  The father was born in 1967.  They commenced a relationship in about 1995 and as I have said, three children were born of this relationship – B in 1999, C in 2001 and D in 2002.  D was born shortly after the parties separated for the final time but may I say this:  that the co-habitation, for want of a better word, of the parties was marked by ingestion of drugs on both sides.

2. The father concedes that he was heavily addicted to cannabis.  The mother has had a potpourri of drugs.  She not only has cannabis but she has had heroin and speed as well.  She has had a terrible struggle with it – more of that anon.  The father says that he has not partaken of cannabis for some time and that he now is clean in relation to addiction to drugs.  I compliment him upon doing that.  It is not an easy thing to do according to the many cases that have come before this Court in the last years. 

3. It is quite clear on the material before me that the father is seeking an order which is diametrically opposed to that which was made by consent in June 2008 and he’s seeking an order for the children to reside with him and that the mother, as I understand, have initially supervised contact but he tended to veer away from that in evidence, indicating that she should have each alternate weekend contact and one half of the school holidays.  Needless to say, I must make it quite clear that the children have never been out of the possession of the mother for any lengthy period.

4. The children generally are well, save for B.  B suffers, as appears from Dr F’s report, what she considers to be Asperger’s or some form of autism spectrum disorder and he can be a particularly difficult boy.  This has been conceded by both parties, perhaps more reluctantly by the applicant father than the mother but it is quite clear in the evidence before me, he is a handful, as I must say a lot of those children suffering from that unfortunately disability are.  He’s now 12 and he’s attending school and there have been some difficulties at school but he appears to be particularly bright in relation to maths.  He struggles with English. 

5. According to some of the material which is set before me, he gets somewhat concerned if in fact he does not get his fix, if I can put it that way, for maths.  It is perhaps symptomatic of what has been known in the past as the “idiot savant” where a person may be very heavily disabled in all other aspects of life but in some particular areas, he is exceptionally bright.  I’m not for one moment suggesting that it’s a diagnosis of B.  He has enough diagnoses problems with Asperger’s rather than being also classified as an “idiot savant”.  I make it quite clear that I do not have the requisite knowledge to be able to make such diagnosis but that I smack something similar to it.

6. As I said the parties separated in 2002, just before D was born.  Since then, they have been to-ing and fro-ing before this Court, between the local courts in relation to, as they call down here, domestic violence orders.  Are they DVOs or AVOs?  ADVOs in New South Wales.  The mother having had one, I understand, which was in effect not opposed by the father some considerable time ago which extended for two years and that was in so far as B was concerned as well. 

7. The peers of the Federal Magistrates Court in 2004 was ceded to the matter, made certain orders by consent where in the father was to have contact with the children for each alternate weekend from 5 pm Friday until 7 pm Sunday and for one half of each of the school holidays.  There was subsequent thereto an allegation made by B that his father touched him and C and D with his wee-wee.  The allegation has been waterfalled, if I put it that way, into a sodomistic rape of the boy not only by the father but by three of his confreres.  It appears that he was living at the alleged relevant time in a single males’ accommodation.

8. The mother has expressed extreme concern about these complaints by B and quite properly she took him along to, the police first and then the Department of Community Services with a view to having this matter investigated.  It was investigated and as it appears to be, the Department was unable to substantiate this and the matter has since faded from the memory of all but the mother, the father, B and this Court.  It is essential of course that I come to a conclusion, regrettably in a case such as this, as to whether or no such assault took place by the father either on his own or with the assistance of three other males.

9. The boy was at the relevant time some five years old and physical examination by a medical practitioner indicated no physical damage to the child.  I would have been surprised, speaking for myself, that five males or four males sexually penetrating this child only that there would be no damage shown and there was none.  However, Dr F, a well-known psychiatrist was asked about this.  She was of the view four, there would have been or must have been some signs of physical damage to the boy but one, there may not have been. 

10. Because I am satisfied that really a standard of proof in this case is still on the balance of probabilities, it would appear to me that even on the balance of probabilities I could not be persuaded that anything of that nature took place and I’m persuaded that the father has not anally raped his child or acted totally inappropriately in a sexual manner towards him.  However, his mental condition, which I will be touching upon at later stage, does concern me because he does seem to have some predilection to be referring to paedophiles in a great number of occasions when he breaks down but that is, at this stage, not much moment.

11. But the more important matter in this so far as the allegation is concerned is that the mother genuinely believes that this has taken place.  Whether in fact it has taken place or not is of vast importance.  I consider it a more important matter now, seeing in his history, and that the child will be adequately protected, is whether the mother believes it.  She does.  This springs to existence the well known principle enunciated in Russell & Close, which was first enunciated by Jordan J and subsequently being picked up, in that if a mother genuinely believes in the certain course of conduct, notwithstanding the fact that that course of conduct has not been proved to the satisfaction of a judicial officer but that such belief could, if she was forced to place the child in what she considered to be a perilous situation, affect her gravely, affect her parenting, then that must be taken into consideration particularly strongly.

12. The mother has this belief.  It is a belief which perhaps on the evidence is one that should not have been accepted so fully and believed but she believes it.  That is a tragic situation.  The father is seeking full time care of the children and Dr F has touched upon this as well.  She would be of the opinion that this could gravely affect the mother’s counselling and support for her children.  It’s a matter which I take into consideration.  It has been briefly raised in the mother’s case information document that I should apply the doctrine of Rice & Asplund which indicates that if a matter has been resolved a comparatively short time prior to the second application, that unless there have been changes of a sufficiently grave nature, the Court should not have to revisit what has taken place at that time.

13. I make it quite clear at this stage because of matters that I will touch upon at a later stage, it is quite clear that if there is a hurdle, it has been overcome and I would be entitled to fully investigate all the matters in relation to the orders made in this Court notwithstanding the fact that the order which they referred to which were 2 June 2008 purported to be a final order as far as any order in this Court can be final, subject as I’ve said to the doctrine of Rice and Asplund.  Subsequent to the disclosure by B, the mother became recalcitrant in allowing the father to have contact not only with B but the children.  And she contacted the Department in June 2005. 

14. The Department interviewed them in July, was physically assessed by a paediatrician, Dr G.  I’ve touched upon that.  And in August 2005, the mother sought a further application in which the father should not be allowed to have any contact with the children.  It was during this time and it had happened before that the mother – I think this was her second admission to H Hospital with a view to having herself detoxed from –this one was cannabis and ice, I think.  She has been a user for considerable period. 

15. She has set out in her admission statement as to the hospitals, the various length of times that she has been subject to drug abuse and in fact, in this case, she discharged herself after a period of four days, notwithstanding the hospital recommended most strongly that she stay.  She has – and I will touch on this at this stage – ups and downs with the drug addiction.  She started at a very young age.  She was addicted for a considerable number of years, then gave it away for a period, took it back up, gave it away for a period and took it up again.  There may be one extra one to it as well. 

16. The final time that she took it up was during the year 2009 and in January 2010, she made certain disclosures which she readily concedes were lies to the hospital in an endeavour to be put on a methadone program and was so put on a methadone program in January of 2010.  Since that time, she has strictly complied with the methadone program, is decreasing her doses and expects to be free of methadone by May of this year.  I have made certain comments about methadone.  We have had evidence from experts that methadone can and sometimes be as dangerous as and sometimes more dangerous than the drugs they’re endeavouring to ween the party away from and the party becomes methadone addicted

17. Fortunately in this case, it appears as though the mother may not be.  She is complying with the reduction of the drugs and has dropped considerably, since it was 30 milligrams at the commencement.  She’s down to 7.5 which in itself is a good thing.  I am sure she must have realised in the times gone past that her addiction to drugs does not in any way advance the welfare of her children.  I think she has been very fortunate and her mother, who is here in court as I believe, has been of great assistance to her during that period and has perhaps been the rock upon which these children’s ship does not founder.

18. And it is absolutely essential that notwithstanding the fact that I know that drugs are exceptionally difficult to overcome – not as bad as smoking which I did – that she has to do it for her children’s sake.  Once they get up to an age of 17 or 18, if she wants to go and kill herself by ingesting drugs and doing stupid things like that, the children are raised, they can look after themselves but they of course would lose all respect for their mother if in fact she does fall back into the drug habit.  Other than that, she has done her very best.  How she has done it financially, I’ve got no idea. 

19. Priestly of counsel for the father cross-examined her on that basis and quite properly so.  She was expending between something like $100 and $150 per week on drugs at one stage in 2009 and she was receiving something in excess of that by way of pension.  I don’t know how she was doing but she said the children have never been at a want because of her drugs addiction.  She has never been reported to the Department of Children Services as being an unfit mother and this is so.  There is nothing before me to indicate that the Department has given it any interest in either, (a) her drug addiction as it relates to the children or (b) her failure to look after the children.

20. I think she will do her very best.  I think that she has done a remarkably good job with the assistance of her mother and she needs that assistance.  She is now endeavouring to get back into sport which she seems to indicate she enjoys.  I think the children play it as well.  And one of the better ways of keeping the drug addiction away is to become healthy and fit and I commend her for that.  She better keep at it.  Sport, I understand is quite big in E Town, is it not?  However, I’ve spoken a fair bit about the mother because of this drug addiction which has loomed large in the father’s case quite properly.  It should be there.  It should be something which the Court considers.

21. In 2005, there was an ADVO against the father, that’s the one which I’ve already referred, for two years.  And I think in 2006, it was the first time that the children attended Dr F who gave a report.  She has given at least three reports in this matter and as is usual with Dr F, they were very lengthy and in depth and of assistance.  She was of that view at that time and still is that the children should remain with the mother for several reasons.  At that stage, the father’s back had been playing up.  He’s suffering from, as I read from Dr F’s case, spondylolisthesis, which is not a very comfortable disease of the spine and I think he acknowledged then or in the report of 2007 that he would be unable to physically look after the children altogether because of the poorness of his back.

22. He subsequently has had a fair bit of physio and he feels physically able to look after them.  B would be a handful.  B is, when he takes his Ritalin, perhaps not quite as overactive as he would be otherwise but Asperger’s children can be a handful whether they’re sedated by Ritalin or not.  He is ashamed that a boy of his age is being medicated with Ritalin but it is better for him to be the way he is rather than what he would be without the assistance of this drug which has its critics, of course.  Perhaps as a direct result, the subsequent contact with the father has had has been split u.  Now the two girls go –it’s on one weekend and B goes on the following because he indicated or it was advised that he was not handling the children well enough, all three of them at the same time.

23. Why would that be?  It appears that the father, notwithstanding the fact he’s under a delusion, suffers from delusional problems.  His delusion, his prime delusion is that he believes he hasn’t got anything wrong with him.  He has.  It is quite clear on the evidence before me of two admissions which took place in October 2008 and one in 2009 that whilst he may not be of a physical danger to the children or to any other person, he could quite easily be a danger to himself.  I read into my reasons for judgment exhibit 3 which is the I Town or E Town Hospitals’ reports on his admissions and in there, they find that he is paranoid, that he’s addicted to cannabis.

24. They were very concerned about him and they set out the concerns in relation to his health.  There is a report of a Mr J in emergency where he refers to the first admission that was in October 2008 as a psychotic episode.  His subsequent admission was similar in nature but lasted for a longer time in that he was an inmate in the hospital from 22 November until 23 December or something of that length of time.  He was not well.  He is of the opinion that there is nothing wrong with him.  I regret to say that there is and that until such time as he wakes up to the fact that he is unfortunately unwell and that he should be looking to taking medication to relieve the symptoms of this psychotic problem, he is not going to be sufficiently well enough trusted to look after the children full-time.  That is the tragedy of it.

25. Since then we have had continuous or frequent referrals to this Court that by 2008 on 2 June, a final order – I have already referred to that – was made by Murphy J in which it allowed the father to increase his time with the children from a comparatively limited time to daylight time and such contact was unsupervised.  There was to be, according to the order, no overnight time.  This order went into effect for a very short period and on one occasion when the father had the children with him, Jessie allegedly ran away and they were in a hotel for a reason which had been explained by the applicant father but they were comparatively near the maternal grandparents’ residence and the child ran away to that residence.

26. Perhaps as a direct result of that, contact since then has been very, very erratic if at all. Orders were made by - - -

RECORDED; NOT TRANSCRIBED

1. Once again, I’ve referred to the fact that the mother admitted herself to H Hospital and was released in January 2010.  Now, she says has not touched drugs other than the prescribed methadone since then, save for one occasion when she ridiculously and stupidly had one cone of cannabis in January or sometime this year, explaining that at as saying that the children were with the fraternal grandfather in Sydney and she was lonely. 

2. I don’t see how drugs can make you any less lonely.  It might give you some kick but it was a stupid thing to do and it’s something which she will never do again, I’m sure.  If she does, she will lose the children.  It might not necessarily be to the father.  It could be to their grandmother.  It could be to the fraternal grandmother but she will lose them.  If it comes before me, she will.  That’s a promise, not a threat.  In September last year, before Brewster FM the matter was reopened by consent and orders were made to enable the father to have a contact centre at the E Town Contact Centre. 

1. Dr F’s final report was released on 14 March.  Dr F’s reports at no time really refers directly to any form of diagnosis of delusional and/or paranoid behaviour on the part of the father.  I must confess that she does say in there that she has some concerns about his personality but she was fortunately afforded quite correctly by the Independent Children’s Lawyer – perhaps I was a bit surprised it wasn’t done a bit earlier, it may not become available until then – with the reports from the hospital.  That’s exhibit 3.  And upon being asked today, she says she was tipped over the edge in her diagnosis of the father by the contents of that report and she now supports the contents of that report and that is something which she takes into consideration in her recommendations that the father not have the full time care of the children but that he have some form of extended supervised contact.  I refer to her final report and incorporate her findings of these in my reasons for judgment.

2. She is aware and has had a great deal of contact with these parties and has come to that conclusion clearly upon the exercise of her expertise in this field in which has practised for many, many years.  Needless to say, I am of the view that we need contact centres but contact supervised by contact centres between children and perhaps a so-called caring father or mother as the case may be do not advance, I think, the welfare of either the father, the mother or the children.  It puts the person whose contact is being supervised at risk of the children coming to a conclusion where there’s something wrong with him or her, otherwise we wouldn’t have contact.  But it is essential for the protection not only of the children but of the protection of the person whose contact is being supervised, from allegations which are false, for it take place.

3. If we could have found someone else who would have been happy to take the responsibility and it is an onerous responsibility to supervise contact, I would have preferred him to have had 10 till 4, 9 till 5, somewhere outside the contact centre.  Only one name was put up.  That was of Ms K who upon being put to her by myself the difficulties that are inherent in all forms of supervision, she indicated that she would like to think about it and since being of near-perfect type to be the supervisor but it is not easy.  She has her own family she said she had to consider, she has a full-time life, full-time job and her time would be exceptionally limited anyway.  I think she said two hours about once a week on a Saturday.

4. Unfortunately, I could not force her.  I do not intend, I made it quite clear to her, to force her into being the supervisor.  We have no one else.  We do have the contact centre, who at this stage have indicated that they were not happy with supervising the handovers because of some difficulty with the personality of the parties.  We can only hope that that changes and the contact will be available at the contact centre by then.  What then should I say to the father, who alleges, one, that the mother has in fact been going out of her way to alienate the children from his affections, two, that she’s a drug addict – has been and still is and that that is not in the best interests of the children.

5. Alienation.  There is a once said, by a famous priest, that “Give me a child until he’s seven and I will give you a man.”  That hasn’t happened in this case.  The children still have a relationship with their father as has been made quite clear by Dr F, particularly when she said they were happy and excited to see him.  That’s good.  We do not in any way want that childish delight in knowing of their father and enjoying themselves with their father to be in any way interfered with.  The mother has failed if she has attempted to do so.  I am more than satisfied that the mother has either covertly or overtly made quite clear to the children of her disapproval of the father and she said in the witness box she wished she had never seen him or words to that effect, and never had any children to him.  That may be the case.  It is unfortunate that personalities do fall apart and in this case, it is quite clear that there is no love lost between either of the parties.

6. But I can not see how children who have had such limited contact with their father, whose father does have a mental problem – I do not say it’s a disease or illness but a mental problem of delusion and the worst part of it is he doesn’t think he has got it which is a delusion in itself – who has a bad back and he has for two years indicated physically he could not look after the children, that he would be able to look after the children full-time.  I cannot see that.  I do not intend to go into the allegations made by his mother from whom he is obviously alienated and I do not intend to go into the evidence of the maternal grandmother with whom he obviously does not get on terribly well either. 

7. Those matters are there.  I do not think that they are persuasive one way or the other.  I think that there is more than sufficient evidence in this case for me to come to the conclusion which I have done and that is that the children remain with the mother but that somehow or other we have to increase the contact between the children and the father.  I don’t know how we’re going to do it.  I’m going to put a fair bit of pressure upon the Independent Children’s Lawyer.  I’m going to request that she consider any applicant that may be put forward by either of the parties to be the supervisor. 

8. Obviously, we will have supervision at the E Town Centre which, as I have said, is there.  It is good in one way but bad in others.  But we must, if we can, increase the father’s contact.  Not the father’s contact, I shouldn’t have said that.  We should say the children’s contact.  They’re the ones who have all the rights in my court.  Parents have none.  They only have duties and their duties are to advance the welfare of their children.  B is a concern as any ADHD or Asperger’s syndrome child is.  I am required and directed by the political masters who consider the provisions of section 60CC.  I will only consider those which I consider relevant.  I do not have to go through them seriatim. 

9. Obviously I would have thought that it is quite clear and meaningful to say that there is a benefit for the children to have a meaningful relationship with both of the child’s parents but sometimes, of course, the parents don’t allow the children to have a meaningful relationship.  I have a feeling in this case that they do.  I think they have a meaningful one with their mother who has gone through a lot of difficulties.  They’ve probably seen this as well which is the tragedy of it.  Obviously they have a relationship with their father which must be maximised.  Of course, he says it should be maximised by their being in his possession.  I could not be persuaded that that would be to the best of the interests in the matter for the reasons I’ve said before.

10. The children need to be protected from physical and psychological harm.- that’s a given.  And in this case I think there has been some psychological harm by the mother in that she has endeavoured, as I’ve said, probably covertly, not necessarily overtly, in endeavouring to alienate the affections from the children or making out the father to be a bad egg.  She has not succeeded in this because the children still have the relationship, notwithstanding B now is 12 and I make it quite clear that this matter will not be coming back before me but if it does and I find that there is a continuation of overt or covert attempts of alienation, it will be treated most severely.

11. The children have expressed their views.  I refer to those things said by Dr F where they want to have contact with their father.  I think C said she didn’t want to stay overnight and obviously I couldn’t order that at this stage. 

12. There is no practical difficulty and expense to the child spending time and communicating with the parent.  They’re both in the same area – by area, I mean E Town – and they are not that far apart.  The mother has a motor vehicle which was given to her as a result of the largesse of the paternal grandmother.

13. I think that both of them have the capacity to provide for the needs of the children, including emotional, intellectual needs, perhaps emotional needs not quite as good as it should be on the father’s side and I have already touched upon what I consider that perhaps to be the mother’s overt or covert alienation of the children by way of her disapproval of the father. 

14. I must take into consideration what the political masters say in relation to section 60CC(4), the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent.  And then I take into consideration those matters referred to in 60CC(4)(a) and (b). 

15. I have done so.  I consider that both parents have not done the best they possibly could by the children.  One, because of the mother’s drug addiction.  Two, because of initially the father’s drug addiction which is overcome and the fact that he does not recognise that he needs assistance and until he gets that assistance, he is not going to get much further than my court, I would have thought.  I must take into consideration where the children’s parents have separated.  I would have thought that the Court would not particularly be excited if in fact the parties hadn’t been separated but that’s the way that the draftsmen see it and it says:

    
    4(a)      If the children’s parents have separated, the Court must apply in                subsection 4 have regard in particular to events that have regard     in particular to events that have occurred in circumstances that
               existed since the separation of –

16. I think I’ve set those out.  I have set out the drug attendances.  I have set out her endeavour to dry herself out, I have set out the views of the Department of Children Services, of the police, of the doctors, of the psychiatrists and of this Court.  Finally, I have two matters to decide which is a result of Rosa.  I see that the Independent Children’s Lawyer has suggested shared parental responsibility.  I must say that I don’t think that will work.  These parties can’t agree, in effect, on what day of the week it is.  They are at each other’s throats.  They, perhaps I should use the word hate each other, but they don’t approve of each other’s lifestyle one jot.  How they can possibly agree on some of the more important things about the children’s future life together would not happen.

17. Consequently, the presumption of shared parental responsibility is in my opinion overcome and I will order the mother have sole parental responsibility of the children but that she must indicate and notify the father of any decisions of a substantial nature, ie, severe medical treatments, school, etcetera.  As I’ve said, I have to look at Rosa, notwithstanding the fact that I found the parental responsibility should not be shared.  I am of the view that I still should find whether there is significant, substantial amount of contact being ordered.  I intend to order that the father have contact, basically in accordance with the draft of the Independent Children’s Lawyer, each alternate weekend to the three the children.

18. I don’t think there should be some specialised form of contact with B or for the girls that the case may be in it being separated at each alternate weekend for the maximum period that is allowed at contact centres in the E Town area.

19. I further order that the Independent Children’s Lawyer is to consider the attributes of anybody put forward as an independent supervisor for the purposes of extending such time.  And I give authority to the Independent Children’s Lawyer to approve or otherwise of such proposal.  I further order in accordance with the draft of the Independent Children’s Lawyer in two, three as modified, four, five – I think five is particularly efficient in this case – six and seven.

20. Insofar as recommendation of the Independent Children’s Lawyer as to counselling of the children’s concern, Dr F is of the view that in particular B should be counselled and I would order that B be counselled as soon as practicable such counselling to be organised if at all possible by the Independent Children’s Lawyer.  I don’t know about C and D but that in itself may be picked up by the counsellor themselves.  I order accordingly.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 14 April 2011.

Associate:     

Date:              24 May 2011