Sleeman and Sleeman
[2009] FamCA 745
•26 May 2009
FAMILY COURT OF AUSTRALIA
| SLEEMAN & SLEEMAN | [2009] FamCA 745 |
| FAMILY LAW – CHILDREN – Best interests – Where mother acknowledges mental health issues – Where child receiving therapy – Where allegations of abuse perpetrated by the father against the mother – Where order for sole parental responsibility made – Where single expert recommends reduction of time for the child to spend with the father |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Sleeman |
| RESPONDENT: | Ms Sleeman |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | PAC | 1072 | of | 2007 |
| DATE DELIVERED: | 26 May 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 18 - 20 May 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Carr (Solicitor Advocate) |
| SOLICITOR FOR THE APPLICANT: | Forshaws Neill |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney |
| SOLICITOR FOR THE RESPONDENT: | S M Boyle & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Cleary |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All prior Orders in relation to the child … born … April 2001 (“the child”) be and hereby are discharged.
The mother have sole parental responsibility for the child.
The mother is to authorise the child’s school to forward to the father copies of all documents relating to the child’s welfare and progress at school including but not limited to school reports, weekly notices and invitations to purchase school photographs.
The mother is to keep the father informed as to her contact telephone number and email address.
Communication between the parties is to be by email, mail and text message. Any mail from the father to the mother or to the child is to be addressed to them care of the maternal grandmother’s residence.
The mother is not to change the residential address for herself and the child outside of the Sydney Metropolitan Area without first giving the father 28 days notice of her intention so to do.
The mother is to immediately advise the father of any accident, serious illness or emergency involving the child occurring while he is in her care.
The father is to spend time with the child as follows:
(a)For a period of 2 hours in April, July, September and December supervised at the E Contact Service at such times that the Centre advises
Both parties are to forthwith attend the E Contact Centre and do such things as required by the centre to be registered as users of the Centre.
The reports of Dr R dated 28th August 2007 and 13th November may be published to Ms M, the child’s treating psychologist.
The Independent Children's Lawyer forthwith forward a copy of these orders to Ms M, the child’s treating psychologist.
Within 14 days of the date of these orders the mother arrange an appointment with the child’s treating psychologist for the purpose of explaining these orders to the child.
The appointment of the Independent Children’s Lawyer is extended for a period of six months from the date hereof.
I note the advice from Dr R that the child should see Ms M on a more frequent basis once the orders are published and I note the mother has advised through her lawyer that she will ensure that happens.
The father is restrained from approaching the child or the mother at any times other than the times provided for face to face time for the father with the child pursuant to these orders.
Following the child having attained the age of 11 years the father may apply to the court for further orders to spend time with the child.
In the event of the father electing not to take up the opportunity to spend time with the child pursuant to these orders he is to notify the mother and the Independent Children's Lawyer of that fact and the orders for the child to spend time with his father will thereafter lapse until such time as the father notifies each of the Independent Children's Lawyer and the mother that he is wanting to take up that opportunity again.
In the event of the father being unable to take up time with the child on a particular occasion then he is to give not less than 48 hours notice to the contact centre and the mother of that circumstance. Should he fail to attend at a scheduled visit with the child without providing the notice, as specified herein, then the order for time for the child to spend with the father is suspended until further order of the court or written consent of the mother to the continuation of the order.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sleeman & Sleeman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 1072 of 2007
| MR SLEEMAN |
Applicant
And
| MS SLEEMAN |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
This is a parenting dispute between the applicant father, Mr Sleeman, and the respondent mother, Ms Sleeman, in relation to their child, a son born in April 2001 (now eight years of age).
The father seeks orders set out in Exhibit H1 and the mother seeks orders set out in Exhibit W1. At the commencement of the hearing on 18 May 2009 the Independent Children's Lawyer was not in a position to advise what orders would be recommended.
The mother sets out a chronology in her case outline. In the father's case outline document (Exhibit X3) he says:
“1.For the sake of simplifying the outline the Applicant Father agrees with the Mother’s case outline but says that the anger and violence alleged against him is either exaggerated or inferred from facts where the Mother does not provide any corroborative evidence. “
I here incorporate the chronology provided by the mother as part of Exhibit X4 (the mother’s case outline document):
Date Event Ref […] 1964 Mother ([Ms Sleeman]) born (currently 44 years). M#2 […] 1967 Father ([Mr Sleeman]) born (currently 41 years). F#2 […] Feb 2000 Parties marry. M#3 […] Apr 2001 Child […] born (nearly 8 years).
Following [the child’s] birth the Mother is diagnosed with Post Natal Depression and Psychosis.
Thereafter the Mother remains living at her parent’s home with [the child] for a period of approximately five (5) months.
M#4
M#17
M#18
Sept 2001 Mother returns to work.
Father attends at the Mother’s work premises with the child […] (then 5 months) stating that he cannot cope and thereafter the Mother arranges alternate carers while she works.
M#20
Oct 2001 Parties, assisted by the Wife’s parents, purchase [N property] where they thereafter reside for a period of approximately three (3) years.
Thereafter the Father is increasingly angry and aggressive.
To the point where almost on a daily basis it is necessary for the Mother to remove [the child from the Father’s care.
M#21ff
M#31
M#34
29 Nov 2001 Conversation between the Father and the maternal Grandfather. M#19 & “A” Jan 2005 The Father is extremely angry and grabs the Mother pulling her hair and threatening to hit her. M#28 […] Dec 2005 Mother’s Father dies. M#19 Apr 2006 Mother consults Dr [R], and is encouraged to decrease her medication for Post Natal Depression. M#45 Oct 2006 Mother attends upon her general practitioner Dr [C] and discusses separation. M#50 Nov/Dec 2006 The Mother purchases a touch night light for [the child’s] bedroom which the Father continually removes from the room. [The child] begins vomiting prior to going to bed.
On one occasion [the child] accidentally turns the light on during his sleep following which the Father enters [the child’s] room yelling at him until he is in tears. Thereafter [the child] develops night terrors.
M#38
M#39
Dec 2006 Until early January 2007 the Father on more than one occasion tells the Mother to leave with [the child]. M#51 28 Dec 2006 Mother attends upon Dr [C] in relation to her mental health and obtains medication and treatment. M#50 6 Jan 2007 Father, in the presence of [the child], says, “I am going to shoot myself and I will bash you to a pulp”.
Thereafter and until 19 January 2007 the Father says to the Mother, “I am going to make life so bad for you, you will leave”.
M#52
M#53
20 Jan 2007 The Mother voluntarily admits herself to [D] hospital and there remains until 29 January 2007.
[The child] stays with and is cared for by [the maternal grandmother]
M#56
30 Jan 2007 Parties separate.
Mother leaves a separation note for the Father of the [G] property and thereafter commences to reside with [the child] with her Mother at [S].
M#3
M#57
1 Feb 2007 During a telephone conversation between the Maternal Grandmother and the Father the Father says, amongst other things, that, “I got no purpose and I will kill someone before I take myself”.
Thereafter the Mother and [the child] go into hiding for a period
MM#31
M#60
12 Feb 2007 Mother obtains legal advice.
Thereafter the Mother attempts to facilitate telephone contact between [the child] and the Father.
M#62
M#62
13 Feb 2007 First occasion of telephone contact. M#63 14 Feb 2007 Second occasion of telephone contact following [the child] begins calling out in his sleep, “I don’t want to go”.
Thereafter the Mother consults with Dr [B] concerning [the child] and attends Family Relationships Centre for advice.
Thereafter the Mother attempts to gradually build contact between [the child] and his Father throughout March and April 2007.
[The child] has increasing difficulties in relation to and following time spent with his Father.
M#64
M#68
M#68 to 70
M#71
27 Feb 2007 Father commences these proceedings. 11 Mar 2007 Father refuses to return [the child] to the Mother’s care at the agreed time of 6pm, not returning him until 7:30pm. M#82 13 Mar 2007 [The child] makes statements to the Mother suggestive of self harm. M#84 16 Mar 2007 Orders (Halligan FM) to the following effect:-
1. To appoint an ICL.
2. The Mother to file and serve a Notice of Child Abuse within seven (7) days.
3. Orders in accordance with Terms of Settlement.
The Terms of Settlement provide as follows:-
1. The child live with the Mother.
2. The Father spend time with the child each Sunday from 10am to 6:30pm.
3. The Mother/agent deliver the child to the Father and Father/agent return the child to the Mother.
4. The Father communicate with the said child by telephone between 6:45pm and 7:45pm daily.
5. The Mother and Father have parental responsibility for the child’s day to day care welfare and development at such times as the child is living with them.
6. Neither party shall denigrate the other nor any family member either to within the hearing of nor in the presence of the child.
7. The Father and Mother communicate with respect to the arrangements for the child by means of a communication book.
23 Mar 2007 Mother files a Notice of Child Abuse alleging abuse/risk:-
1. Assault on the child by the Father hitting the child severely and especially around the head.
2. Swearing and yelling at the child.
3. Threats made to the child and in the presence of the child.
4. Physical and mental abuse of the Mother by the Father in front of the child; and
5. Referring to specific paragraphs of Affidavit material filed in the Mother’s case.
27 Apr 2007 Orders (Halligan FM) to the following effect:-
1. List the matter for final hearing on 18 September 2007 for two (2) days.
2. By consent orders in accordance with Terms of Settlement.
The Terms of Settlement provided as follows:-
1. That the child live with the Mother.
2. The child spend time with the Father:-
(a) 5:30pm Saturday to 6:30pm Sunday for the weekend commencing 28 April 2007.
(ai) 1pm Saturday to 6:30pm Sunday for the weekend commencing 5 May 2007.
(b) For three (3) out of four (4) weekends from Saturday 1pm to Sunday 6:30pm commencing 19 May 2007.
(c) During the shorter school holiday periods each weekend from Saturday 1pm to Sunday 7:30pm.
(d) On the occasions that the child is not participating in Saturday sport time with the Father is to commence at 11am on Saturday.
(e) The Father shall communicate with the child by telephone between 6:45pm and 7:45pm daily.
(f) Other times as agreed between the parties.
3. The Mother/nominee to deliver the child to the Father’s residence at the commencement and the Father/nominee to return the child to the gate of the Mother’s premises at the conclusion.
4. Both parties are prohibited from leaving the child unsupervised by any adult while the child is in their care.
5. That if the Mother is further hospitalised or has an increase in her prescribed medication she will notify the Father as soon as practicable and shall request her Mother to notify the Father in the event that she is unable to do so.
6. That if the matter is not determined on a final basis by 15 December 2007 the parties have leave to make a further Application for interim orders.
7. If the child is unable to attend due to ill health or misadventure then the child shall spend a make up weekend with the Father at the first available opportunity.
8. That both parties are to receive all school reports and notices and may attend school functions and the Mother is directed to notify the child’s school of these orders.
9. That each party is to notify the other party as soon as practicable in the event of a medical emergency and both parties may attend on the child in the event of the medical emergency.
10. That the Mother is provide an authority to [Ms W] for the Father and his legal advisor to speak with her.
11. That the Mother and Father shall each respectively have the parental responsibility for the child’s day to day care, welfare and development at such time as the child is living with them.
12. Neither party shall denigrate the other nor any family member either to within the hearing of or in the presence of the said child.
6. The Father and Mother communicate with respect to the arrangements for the child by means of a communication book.
7. Note that the Court notes that notwithstanding the parties are consented to the making of these orders neither party is making any concessions to their Application for final orders.
[The child] expresses resistance to spend time overnight with his Father.
M#72
1 May 2007 Interim AVO is entered in the Local Court against the Father for the protection of the Mother. M#61 15 May 2007 [The child] commences to wake and want to sleep with the Mother. M#88 17 Jun 2007 [The child] returns home from time with the Applicant with a swollen nose and scratches all over his nose and face – no explanation is proferred by the Father. M#93 19 Jun 2007 Orders (Halligan FM) to the following effect:-
1. That Dr [R] be appointed Expert and prepare a Report.
21 Jun 2007 Mother’s Solicitors write to the Father’s Solicitors raising a series of concerns in relation to [the child] – no response is received. M#97 12 July 2007 Interviews for first report of Dr [R] 26 July 2007 Further interviews for first report of Dr [R] 12 Aug 2007 [The child] returns from time with the Father with an abrasion on his penis. M#105 28 Aug 2007 First Report of Dr [R] 18 Sept 2007 Orders (Halligan FM) on the proceedings being marked not reached and transferred to the Family Court to the following effect:-
1. Suspend Orders 2, 3, 6 and 12 of 27 April 2007.
2. Order that [the child] spend time with the Father for the first three (3) Sundays out of every four (4) from 9:30am until 7pm commencing 23 September 2007.
3. Order that time be facilitated by:-
(a) The Mother/nominee deliver [the child to] McDonalds [G] at the commencement; and
(b) The Father/nominee deliver [the child] to McDonalds [S] at the conclusion.
4. Telephone contact each second day between 6:45pm and 7:45pm with the Mother to facilitate the same.
5. The Father as soon as practicable to enrol in and attend the following courses opted by Relationships Australia, […]:-
(a) “Building Better Relationships and Managing Conflict” commencing 17 October 2007.
(b) “Managing Anger” commencing 16 October 2007.
6. Each party will, as soon as practicable, enrol and attend a Parenting After Separation course, subject to notation 8 below.
7. Each party is restrained from denigrating or permitting any third party to denigrate the other in [the child’ presence or hearing.
8. The parties will not telephone one and other except in relation to matters relating in [the child’s] welfare.
10. The Court notes that the Father and the Mother will attend upon [the child’s] Therapist [Ms W] to support her therapy and treatment of [the child’s] behavioural difficulties as requested from Ms [W] from time to time.
11. Noted it is anticipated the Father will attend the first available Parenting After Separation course after he has completed the courses identified in order 6 above.
12. It is agreed to attend the further family dispute resolution conference prior to the long summer school holidays to discuss issues including the progress of [the child’s] time with his Father and arrangements for [the child] to spend special occasions and other school holiday time with the Father.
13. Noted the parties agree to obtain an update Report from Dr [R] prior to proceedings for final hearing and share the costs of the same.
21 Nov 2007 Orders to the following effect:-
1. That the further hearing of all Applications is adjourned to Justice Flohm and Registrar Bartlett on 18 January 2008.
2. Pursuant to S.91B the Director General of DoCS be requested to intervene in the proceedings.
3. That DoCS is requested to prepare a Magellan Report as to the Mother’s allegations contained in her Notice of Child Abuse filed on 23 March 2007.
4. DoCS is to be forwarded copies of all materials in the proceedings.
Dec 2007 [The child’s] behaviour progressively deteriorates expressing resistance to time with his Father and that he is scared. M#107 2 Dec 2007 Mother telephones the Father to seek to change contact as [the child] has tonsillitis and the Father says to the Mother, “I will send someone around to the front door and see you shit yourselves and watch the shit run down your legs”. M#111 25 Jan 2008 Orders (Flohm J) to the following effect:-
1. Orders of 18 September 2007 are to continue and each parent is to comply with those orders unless further orders are made and that Sunday 27 January 2008 is to be week one (1) of the three (3) week cycle.
2. That the parties undertake intake assessment at Interrelate, [E], and until changeover is available at that centre:-
(a) Mother/nominee to deliver the child to McDonalds [G] at the commencement.
(b) The Father/nominee to deliver to the child to McDonalds [S] at the conclusion.
3. The Court notes that the Orders of 18 September 2007 acknowledge the parties’ intention to both be involved in [the child’s] counselling with Ms [W] and the Court further notes that to date the Father has been excluded from that process despite efforts to participate and the ICL has indicated to the Court that Ms [W] will be notified and reminded of the contents of the orders and directions made on 18 September 2007.
4. That an updated Report be prepared by Dr [R].
5. That for the purpose of that Report the assessment is not commence prior to 1 August 2008.
6. The matter be listed for hearing estimated four (4) days not before 30 September 2008 and the parties will be notified of the hearing date.
7. All Affidavit material be filed and served by no later than 28 days prior to the final hearing date.
Mar 2008 [The child] commences to consult with Ms M] (Psychologist). Exhibit “M” Apr 2008 [The child’s] reactions following time with the Father are becoming increasingly worse and more aggressive, [the child] takes to hiding in cupboards to try and avoid spending time with the Father. M#121 1 Jun 2008 At changeover the Father approaches [Mr I] and says to him in the hearing and presence of the Maternal Grandmother and said, “I am glad that your generation will be dead soon” and “when you are dead I will come and dance on your grave”. BR#4 19 Jun 2008 [The child] consults with Ms [M] (Psychologist) following which Ms [M] says to the Mother, “I am concerned in the change of [the child’s] behaviour, I recommend that [the child’s] time with his Father be suspended” and provides a Report. M#133 & Exhibit “M” 7 Aug 2008 Interviews for further Report of Dr [R]. 10 Sept 2008 Orders (Flohm J) to the following effect:-
1. Leave granted to the ICL to re-list the matter when able to confirm the date on which CentreCare […] can provide supervision of contact changeover.
3. The Court notes that Dr [R] will be assessing the parties and the child on 22 October 2008 and at the next listing the Court will make an order for contact between the child and the Father on the day that he attends Dr [R].
4. The Court confirms that on 14 September 2008 the Father will be taking the child to the circus.
5. That on 14 September 2008 the Mother is to deliver the child to the Father at 11:30am to McDonalds [G] and the Father to return the child at 6:30pm to McDonalds [S].
6. The Father’s time with the child is suspended until changeover at a contact centre as arranged and the only exception to that is 14 September 2008.
7 Oct 2008 Mother attends with [the child] at Catholic Care for induction into the centre. M#150 22 Oct 2008 Further interviews for further Report of Dr [R]. 12 Dec 2008 Orders (Flohm J) to the following effect:-
1. That [the child] spend time with the Father at Catholic Care at […] on 27 December 2008, 24 January 2009 and thereafter monthly as arranged.
2. Such time to be for a minimum of two (2) hours.
3. Each party do everything necessary to fulfil the requirements of Catholic Care
4. Each party share equally in any costs incurred.
6. The Court notes that although the Father has consented to the making of these interim orders he does not concede that supervision is necessary and still seeks the orders outlined in the Application initiating proceeding filed in these proceedings by him on a final basis.
27 Dec 2008 Father spends time with [the child] at CatholicCare F#44 24 Jan 2009 Father spends time with [the child] at CatholicCare F#44 27 Feb 2009 Father spends time with [the child] at CatholicCare F#44
I will re-visit the question of the father's alleged anger and violence. The Court has the benefit of two reports from Dr R. In her first report (Exhibit X1) Dr R recommended that the child live with his mother. She suggested the child spend time with his father on an alternative Sunday basis until his behavioural problems settle. She recommended the father do an anger management and conflict resolution course. There were other recommendations.
In her second report (Exhibit X2) Dr R recommended the child spend time with his father in a contact centre on a monthly basis to ascertain whether this gives him the predictability and security needed to promote his development whilst also allowing his relationship with his father to be maintained, albeit in a very attenuated manner. I will refer to other portions of exhibits X1 and X2 later in these reasons.
Credit
The Father
The father presented as a quite intense witness. He had what appeared to be an angry outburst on occasions, such as when he was questioned as to whether he had read the mother's affidavit. He had not read the entirety of the affidavit. He had a tendency to argue with the Counsel asking questions. He frequently did not answer the questions asked of him. The father did admit to certain allegations put to him, such as the allegations made about violence demonstrated to the wife in various forms as set out in the mother's affidavit. He denied other allegations. There was nothing about his presentation in the witness box that suggested to me that he was being deliberately untruthful.
The Mother
The mother presented as a quiet, subdued and thoughtful person. She readily made concessions in favour of the father. She appeared sensitive to her child's position in the parenting dispute. She gave her evidence in an apparently honest and open manner. It was not suggested that her detailed allegations about the father's behaviour towards she and the child were wrong. As a consequence of seeing her giving her evidence and considering her evidence I conclude that her evidence is to be accepted.
The Maternal Grandmother
This witness presented as a concerned grandparent. She was very level headed and displayed an even temper. She was not cross-examined as to any of the allegations or complaints made by her about the father's conduct. I accept her as a witness of truth.
Mr I
Mr I was required for questioning by the Independent Children's Lawyer. He was not cross-examined by the father's Counsel. None of his evidence was challenged.
Mrs I
Like her husband, Mrs I was required for questioning by the Independent Children's Lawyer. She was not ultimately not cross-examined.
Dr R
In a very professional and compelling manner Dr R gave her oral evidence. I have no reason to doubt her professionalism, qualification or opinion.
Ms M
Ms M gave her evidence in a straightforward and apparently professional and honest manner. She appeared very sensitive to the child and his needs and at the same time did not appear partisan.
The Evidence
The mother gave evidence-in-chief in her affidavit filed 16 March 2009 and sworn 13 March 2009. Shortly before the parties’ marriage the mother moved into the father's residence, which was also his mother's residence. That property is at G (“the G property”) where the father still resides. After the birth of the child the mother said she experienced difficulty and unusual behaviour by the father. She sets out details of this in general terms at paragraph 12 of her affidavit.
When the child was eight weeks old the mother understood she had post natal depression. She had experienced some worrying symptoms prior to that. After that time the mother lived with her parents for about five months. In December 2005 the mother's father died. The mother returned to work as a registered nurse when the child was five months old. In January 2005, whilst the father was at work, the mother arranged for the father's mother to move to alternative accommodation. This alternative accommodation was a nursing home. I accept that the father was angered by this and held his fist to her jaw and pulled her hair.
The parties purchased a property at N; the father's mother lived with them until she went to the nursing home. Thereafter the parties moved back to the G property. The mother then set out in paragraph 31 of her affidavit a long list of behaviours she accused the father of. Some of those matters were put to the father in cross-examination, other were not put. No criticism is intended by that comment. Having seen both parties give their evidence I do accept the mother's evidence about those matters. These behaviours illustrate aggressive, violent and controlling behaviour by the father. The mother also set out other complaints about the father's behaviour in paragraph 32 of her affidavit. Most of those allegations were put to the father; again, I accept the mother's evidence. On 6 January 2007 the parties were returning from a short camping holiday (see paragraph 52 of the mother's affidavit). The mother says the father became angry and said, "I am going to shoot myself and I will bash you to a pulp". The father was cross-examined about that statement. I accept the mother's evidence.
On about 15 January I accept that the father said to the mother, "There is no such thing as mental illness, pull yourself together, you don't need help from those stupid idiotic psychiatrists, they are all psychos themselves." On 20 January 2007 the mother was admitted to D Hospital. She was there for nine days. The child was cared for by the maternal grandmother. Following discharge from hospital the mother and the child have lived with the maternal grandmother.
On 1 May 2007 the father entered into undertakings to the Local Court. This was in response to the withdrawal of an Apprehended Violence Order proceeding against him. Between March and April 2007 the parents arranged for the child to spend time with the father. This occurred about every Sunday. On 27 April 2007 consent orders were made in the Court. Prior to the consent orders of 27 April 2007 the mother reports a number of events which were clearly a worry for her; notwithstanding those concerns the mother entered into the consent orders.
Following the making of the orders I accept the child complained to the mother about having to stay overnight with his father. The father, in telephone conversations with the mother post the April 2007 orders being made, threatened to take the child away after the Court case set down for September 2007. The parties used a communication book in 2007. The mother annexed some pages of the book to her affidavit. I accept that since the separation the mother has continued to accept supervision by her medical practitioners in relation to her psychiatric health and health generally.
Following the orders of 27 April 2007 the child spent time with the father pursuant to the Court orders. When those orders commenced the mother said the child started to wake up in the night and come to her bed. The mother set out in paragraph 90 of her affidavit a series of things said to her by the child following the orders. I accept her evidence as there set out. The mother says that on 3 June 2007 whilst in the company of the child the father said to her, "It would have been better if you had killed yourself in January". I accept her evidence.
I accept that the mother has had to deal with disturbed behaviour from the child after spending time with the father in 2007. The mother also observed some happy behaviour following time that the child had with his father. I also accept that the child has wet his bed on occasions after spending time with his father in 2007. In December 2007 the mother noted the child’s behaviour had deteriorated. The child complained of being scared at his father's place. I accept the mother's evidence that in a conversation with the father on 2 December 2007 he said to her, "I will send someone around to the front door to see you shit yourself and watch the shit run down your legs".
On 24 February 2008 the child told the mother, "Daddy let me watch a western with lots of violence and sex in it". The father conceded that this did happen. The mother says that on 15 March 2008 that the father said to her in front of the child, "Until your mum dies my life is non-existent." I accept that conversation took place as reported. As 2008 progressed I accept that the child began to hide so that his mother could not take him to see his father when the occasions arose. I accept that the mother was finding more and more opposition from the child in relation to spending time with his father, either in person or by telephone. I accept that his nightmares increased.
In her affidavit the mother describes continuing behaviour and language from the child which was very troubling to her. In mid-2008 she was spoken to by the child’s school teacher. On 15 June 2008 the mother did not present the child for time with his father. I accept she took this extreme action following the child becoming very distressed about going to see his father. Following that occasion the child saw his psychologist, Ms M, who provided a report. Ms M gave oral evidence in the hearing.
Ms M has been working with the child since March 2008. The child complained to Ms M about his father's anger and statements made about his mother and grandmother. Ms M expressed concern that the current arrangements for the child to be with his father were damaging his mental health. She was also concerned that the child’s primary attachment to his mother was under attack through contact with his father. She recommended an immediate ceasing of contact between the child and his father and a thorough assessment.
In August 2008 there was no contact between the child and the father. Then on 14 September 2008 the child attended a circus with his father. When told of the plans for this outing by his mother the child became distressed. On the day he complained of a stomach ache. He went on the outing with his father. When he returned he told his mother, "It was good mummy; it was not as bad while I was with dad this time." On 28 December 2008 the child had his first supervised contact with his father at Catholic Care.
The mother says that the child appeared very nervous about this event. The mother reports that after spending time with the father at supervised contact the child has exhibited challenging behaviour. He has continued to say he does not want to go.
The mother’s health has gradually improved to a point where she feels able to return to work one day a week. She works as a registered nurse. She is still taking medication which is antidepressant medication. She sees Dr E, a psychiatrist, once every three months.
Earlier this year the mother observed the child to become increasingly distracted while doing school work and other tasks. He bumped into walls. She sought advice for the child.
The maternal grandmother swore an affidavit on 13 March 2009. She is 68 years of age. She is retired. She provided some history. She said that she had heard the father say during the marriage, "[the mother] is a fuckin’ loser, there is no such thing as mental illness, people should just pull themselves out of it."
The maternal grandmother described what she saw of the father's behaviour during 2004/1005. This was aggressive and abusive behaviour. In January 2007 the mother and the child commenced to reside with the maternal grandmother. The maternal grandmother sets out a conversation with the father which she said she heard on 1 February 2007. I accept that conversation happened as set out by the maternal grandmother in her affidavit and I accept that as a result of the conversation the maternal grandmother became extremely scared for the safety of the child, the mother, and herself.
The maternal grandmother says that on 4 March 2007 the child spent time with the father in the company of a friend of the mother, Ms K, and a friend of the father's, known as T. She says the child enjoyed this time.
The maternal grandmother also describes events of 11 March 2007. Those events included the father refusing to deliver the child unless he could speak to the mother and driving off on a motor scooter with the child on the back without a helmet. The police were called.
The maternal grandmother sets out incidents involving the child post 4 March 2007. She also sets out evidence about interaction with the father.
The maternal grandmother set out conversations between she and the father in the presence of the child at changeover. The father had been very abusive of the maternal grandmother. Much of what the maternal grandmother says corroborates the mother's evidence. Evidence has been provided in affidavit form from Mr I and Mrs I. They corroborate the evidence of the maternal grandmother in relation to the occurrence with the father.
The father provided on affidavit sworn on 18 March 2009. He is a delivery worker. He has training in a trade. He described an uneasy relationship with the maternal grandmother since the beginning of his relationship with the mother. He describes an active involvement with the child as a baby. In 2005 the parties purchased a property at N. At that time the father says he was active in the care of the child. The father raises concerns about the child having three dislocated elbows. He was treated at hospital.
The implication in the father's evidence either directly or indirectly is that the dislocated elbows arose as a result of some inappropriate interaction between the mother and the child. When the mother was admitted to D Hospital in January 2007 the father said he did not know she was in hospital until 22 January 2007. He says that he had a telephone conversation with her on 24 January 2007. The father had care of the child for a few days from 26 January 2007. During that time the mother's possessions were taken from the former matrimonial home without the knowledge of the father.
The father says that until the date of separation the child was a happy and healthy child. To support this, the father annexes a copy of the report from the child’s Day Care.
The father acknowledges a problematic relationship with the maternal grandmother. The father says his relationship with the maternal grandmother worsened after she initiated AVO proceedings against him.
The father says that he has no bitterness towards the mother; this was a recurring theme throughout his oral evidence.
After allegations by the mother and the maternal grandmother that the father had anger management problems, the father undertook an anger management course with Relationships Australia. In August 2008 the father says the Court suspended contact between the child and himself. He could see no reason for this.
In December 2008 the father records receipt of Dr R’s report. He noted he has been exercising his opportunity to see the child at the Catholic Care Centre on a monthly basis commencing in December 2008.
The first report of Dr R was marked Exhibit X1. The following matters are of particular note in that report.
Each of the parties outlined their concerns for the child and the other party. Those concerns mirrored the affidavit material and oral evidence of the parties.
In an interview with the child, the child said he enjoyed his time with his father and did not want any change. He really did not indicate any negative view of his father; on the contrary, he described his mother as being the more angry party. He said his father was not angry now. He said his mum was good. He wanted to live, most of the time, with his mother. He was adamant that his father had never hit him; Dr R described a positive meeting for father and son in her presence.
In her session with Dr R the mother referred to a murder suicide threat allegedly made by the father to the maternal grandmother. This referred to a conversation recited by the maternal grandmother in her affidavit at paragraph 31. She alleged the father said, inter alia, "…I’ve got no purpose and I will kill someone before I take myself…". The father denied saying those words; however, having seen both the father and the maternal grandmother on the witness box I accept the evidence of the maternal grandmother on this point.
Dr R noted the history the mother provided in relation to her mental health. It included the relapse in January 2007 after she had been weaned off her medication at the end of 2006.
Dr R had the opportunity to talk to the mother's psychiatrist, Dr E. She records his information. It includes that, "He [Dr E] has no concerns about her relationship with her son."
Dr R also had access to the D Hospital Discharge Summary for the mother.
Dr R saw the father. Under the heading "Assessment of [the father]" the following appears of particular note.
Dr R described the father as "mildly socially awkward". She said, "He seems to feel judged by some standard psychiatric questions." The father told Dr R he might have made what the maternal grandmother called the murder suicide threat as it was "something to say at the time". In discussing the child the father said "[the child] wrestles him for up to four hours at a time" if the father lets him do that. The father acknowledged hitting a wall during the marriage on one occasion in frustration but was not sure if the child was present. He said the mother had dislocated the child’s elbow three times by pulling on him (I note this allegation was not put the mother). He acknowledged the child was scared of the dark.
In her assessment Dr R described the child as a defensive six year old who was anxious about the assessment. He presented as having a positive connection with his father and seemed loyal to him. Dr R posed the following question: "[D]oes the father continue to be reactive, unrestrained, confrontational and single minded when alone with [the child] as he is alleged to be at handovers and was during the marriage? Does he speak negatively about MGM [the maternal grandmother] and [the child’s] psychologist? If so, unsupervised and lengthy periods of time with his father is destructive to him."
In relation to the father, Dr R noted he interacted very appropriately and sensitively with the child. Dr R recommended that the child spend time with his father on alternate Sundays until his behavioural problems settled. "If they escalate after Orders are made then supervised contact needs to recommence."
In her second report dated 26 November 2008, Exhibit X2, Dr R conducted a review from the previous report. The following matters are of particular note.
Dr R spoke to the mother who reported worsening behaviour from the child after he commenced three Sundays a month from 9.30 am to 7 pm with his father. In June, the child’s new psychologist, Ms M, made a "Risk of Harm" report to the Department of Community Services. Contact stopped in June and there has been an improvement in the child’s school reports and his behaviour at home. The mother was concerned for the child’s long term mental health. The mother updated her medical history. She reported conflict with her mother. She did not feel well mentally well enough to return to work.
She said that the child’s last outing with his father was for five hours to see a circus. The child had resisted going. When he returned he said it was "Not as bad as I thought it would be". The mother reported being supportive of the child seeing his father as long as his father did not harm him.
The father was interviewed; Dr R described him as presenting "with a positive, mildly elevated affect and some pressure of speech." This description is consistent with my observation of the father in the witness box.
The father was very critical of the maternal grandmother. He described his activities with the child. He confirmed they watched "old western movies". In the interview Dr R noted the use of sarcasm. The father acknowledged his role in the unsatisfactory changeovers with the maternal grandmother and her supporters. The father denied some of the more serious allegations about statements he had made. The father said he would not agree to supervised time with the child.
Dr R spoke to Mr O who had apparently seen the child with his father on Sundays. He described a positive relationship with no sign of fear.
In her assessment of the child, Dr R noted he was quite cagey when seen alone. He said his father did not hit him however he "just felt scared when his father raised his voice". He said his father sometimes talked to him about the people who facilitated handovers. He acknowledged "sort of" missing his father. He spoke of fun games he played with Mr O.
Dr R described a positive interaction between the child and his father when seen by her. Notwithstanding the observations the child told her after the session with his father he did not really want to see him. In her summary and discussion Dr R hypothesises that exposure to the father's anger is most likely the toxic cause of the child’s reactive symptoms for spending time with his father. Dr R says that the mother has "done very well" with her psychiatric disorder.
The mother presented as "willing to support [the child’s] time with his father but not at [the child’s] expense". Dr R opines the mother is “insightful about how aversive contact she might have with [the father] is to her mental health.”
In relation to the father, Dr R says his “presentation invited diagnostic speculation about the presence of a psychiatric disorder.” She said, "He was rather grandiose in his self evaluation and my previous concerns about his capacity for empathy remains. He is fixated on blaming others for his own poor behaviour and has an unhelpful negative preoccupation about [the maternal grandmother] and her old friends."
Under the heading, "Contact Issue" Dr R says:
"When [the child] spends time with his father the set of circumstances in this family does not provide [the child] with a good enough environment for his development to flourish. Not enough change had occurred in this family system to meet his needs until his time with his father was ceased."
Dr R then recommended the child have monthly supervised contact to see if this gives him predictability and security necessary to promote his development, whilst also allowing the child’s relationship with his father to be maintained.
The child had his first supervised time with his father on 27 December 2008. Reports about those sessions have been recorded and are provided in Exhibits ICL1 and ICL3. The reporting is mixed but includes the following.
On 29 August 2008 a phone call was received from the father. The officer noted anger at various things. The father’s tone was noted as sarcastic and hostile. On 27 December 2008 the writer noted that the father "argued with the writer in a hostile and sarcastic manner." It is noted the father “spotted the child through the fence and called out to him, "[Child] this is a waste of time!". On this occasion the father appeared to have left the premises by jumping the fence.
On 24 January 2009 after spending supervised time with the child the father became "abusive and argumentative". He refused to have his photo taken.
On 28 January 2009 the father phoned the centre. He claimed he had been threatened by the writer of a letter from the centre to him.
On 21 February 2009 it was noted that the father lay on the floor and went to sleep while a staff member played with the child. He used inappropriate language during the session with the child. The father was very hostile towards the case workers. He was argumentative with the case workers. He called his lawyer and complained the supervisor was barking orders at him and threatening his freedom of speech. When the case worker took the child to his mother at the end of the session the father jumped the fence and stood watching the case workers pack away. During sessions with the child the father badgered him with questions about what he did at school, whether he loved him; did he not want to see him? He said he did not want to interact with the child because the child did not speak to him when the father spoke.
On 21 March 2009 at the end of a session the father jumped the fence and left without paying.
On a report of 18 April 2009 it is disclosed that the father lay down for a nap for approximately 15 to 20 minutes during the contact session. When he paid he told the worker to "hurry up" with writing of the receipt.
The last report is 16 May 2009. It reports a good interaction between the child and his father. It also records uncooperative behaviour on the part of the father, including that he refused to pay.
I should record here that throughout the reports from the contact centre there are reports of good interaction between the father and the child; however, it is hard to find an occasion where the father has not acted inappropriately at some point in the session, including being rude, aggressive, confrontational, and/or uncooperative with the centre staff. In his oral evidence the father said that if the child said he did not want to see him he would "walk away". He said "When we meet now we are like strangers, we have nothing to talk about."
The father told me he had undertaken an anger management course as well as a course in communication. He had been to a parent/teacher interview at the child’s school in 2008. The father did not know why contact was supervised in mid-2008. He denied he ever experienced behavioural problems with the child. In relation to questions about his having made a murder suicide threat the father said "hypothetically I said something" and "I said I may as well". He said it was a joke. He said he probably said it in the presence of the child.
The father was cross-examined about the content of paragraph 31 of the maternal grandmother's affidavit. He largely conceded the truth of same. He was cross-examined about the statements made to the mother in January 2007, he said "I am going to shoot myself and I will bash you to a pulp”. He said that he had said he may as well do those things. He agreed he made a gun-like shape with his hand and pretended to shoot himself. He said it was intended in jest. He was upset.
When the case resumed after the luncheon adjournment the father was asked if he had attempted to read documents being read by the mother's Counsel. The father agreed that he had stood behind the Counsel's chair and attempted to look at his documents. The father said, "I was just curious to see what you were reading". This illustrated to me a somewhat extraordinary behaviour.
The father acknowledged that he had been violent to the mother at the time "she put my mother in a nursing home". He said he pulled her hair; he otherwise denied violence. He agreed that a hole had been made in a door by himself when the mother said something. He denied he used force and claimed the door was defective. The father claimed his supervised time with the child had been going quite well. He acknowledged he had been angry with the centre staff "in the beginning". It was put to the father that he tried to intimidate the Contact Centre staff. He said in response, "If they try to intimidate me I do not take a backward step".
It was put to the father he had said to the mother, "It would be easier if you committed suicide". He replied, “No, it’s possible I said "Why didn’t you?" He admitted raising his voice in the presence of the child.
The mother gave oral evidence. She was asked about supervised contact on 21 March 2009. She said the child did not want to go. She told him, "Dad loves you and wants to see you". She said that after that contact the child was "white as a sheet". He had trouble settling to sleep. He was quite defiant.
On the April 2009 contact the child told the mother, "my heart is breaking, I do not want to see my dad". On the 16 May 2009 contact the child said, "I am going to die". After the session the child indicated he had a good time with his father. In answer to questions from the Independent Children's Lawyer, the mother said she wanted the child to have a relationship with his father. She thought he was currently too young and vulnerable to live with his father on his own. She thought that the child would be terrified if left alone with his father.
Although the mother acknowledged the father would not deliberately harm the child, she believed he might accidentally do so in a rage. The mother said she hopes to be able to live by herself with the child independently from her mother after the financial settlement and when she is working more. The mother agreed that the father should receive school reports; however, she was against the father attending at the school. The mother agreed she could communicate with the father by email or text. She did not want to speak to him and she would not want him to know her address if she lived alone.
For future contact she said E Contact Centre is a much closer place for her to attend. Under cross-examination from the father's solicitor the mother admitted past conflict with her mother. She showed insight to her medical condition by acknowledging that if she stopped taking her medication she would have a relapse.
The mother's mother, the maternal grandmother, gave oral evidence. She said she was hopeful that the mother and the child would move out of her residence and live independently.
She described a warm and natural relationship between the child and his mother. She said the child had said to her on the occasion of the last contact, "I am going to die". She has a strong fear for the child’s emotional wellbeing if he spends time with his father. In relation to her own interaction with the father she said she could not cope with an order which had the father collecting and returning the child from her residence. The maternal grandmother said in her opinion, the supervised time with the father has been good. Twice the child has concluded the time and been fine.
Ms M gave oral evidence; she is the child’s psychologist and therapist. She had provided a report to the mother's solicitor dated 20 June 2008 which she identified. She has been working with the child for 15 months. She gives him support for his anxiety. She sees him on one occasion each month. He is still presenting with symptoms of anxiety and/or trauma. Once the Court has made a decision she can give him support around those orders.
After contact with the father ceased in June 2005 Ms M noted that the child was more relaxed, more able to handle tasks, better able to handle situations, and more aware of himself physically. In relation to supervised time with his father Ms M said, "[the child] is very reluctant to discuss it; the supervised visits have helped [the child] in relation to his anxiety.”
Dr R gave oral evidence. She changed her recommendation. She was particularly aware of the reports from the contact centre.
She said that the visits on a monthly basis should stop. These should be visits for special occasions on about three or four times each year. The visits should be supervised at a supervision centre. There could be indirect contact such as cards and letters. There should be no telephone contact. The situation should be reviewed when the child is 10 or 11; the mother agreed with that proposal and adopted it.
Dr R was questioned by the Independent Children's Lawyer and cross‑examined by the father's solicitor. She said that the regime would create a different relationship for the child and his father. She said she was reasonably sure that the amount of contact proposed would not lead to the father and son becoming complete strangers. This would depend upon how available the father made himself to the child. Dr R agreed that the father was displaying social ineptitude. The reports from the contact centre were most troubling in terms of concerns for the child’s emotional wellbeing.
She said if the child continues to experience fear and anxiety he may develop a personality disorder which would leave him disabled in adulthood.
In submissions the Independent Children's Lawyer tendered a minute of order being proposed by the Independent Children's Lawyer.
In the submissions on the part of the mother I was advised the mother proposed to take the child to see Ms M more frequently once the orders were made. The mother proposed that all mail from the father to the child be sent to him at the maternal grandmother's address.
The mother opposed providing the father with her residential address and if she was to move from her mother's home. She would not oppose an order that she would give the father not less than 28 days notice of her intention to locate her residence outside the Sydney metropolitan area.
Relevant Law
Legal Principles
The principles governing this case are set out in the Family Law Act 1975 (Cth). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it. I here set out the provisions of section 60B:
FAMILY LAW ACT 1975 - SECT 60B
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that: “… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows: “…The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
Consideration of Section 60CC
In determining what is in the best interests of the child I am required to consider the provisions of sub sections (2) and (3) of section 60CC.
I am required to consider the following “Primary Considerations”.
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
I understand and accept the application of the primary considerations in the determination I am required to make in this case.
I am also required to consider the other sub-sections of section 60CC.
Sections of the Act to be considered
Section 60CC Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child's parents
I here acknowledge that the orders that are potentially to be made by this Court may have the effect of creating a circumstance where a meaningful relationship between the child and the father will not be able to be continued.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This is a matter upon which I will have regard and I will touch on later in these reasons.
Additional Considerations
Any views expressed by the child
The views expressed by the child have already been set out by me in this case. The views of greatest assistance are those coming from Dr R being an objective and impartial witness in the case. The views that the child stated in the first report were supportive of an ongoing relationship and continuation of time for the child to spend with the father. The views expressed by the child when seen on the second occasion were somewhat ambivalent and were noted by Dr R.
I have to have regard to the child’s age. He is eight years; he has experienced a disrupted childhood. He is currently receiving psychological therapy and I find that I cannot place any weight on the views expressed by the child to assist me in this case.
The nature of the relationship of the child with his parents and other persons
I am satisfied that the child has a good and close relationship with his mother and his maternal grandmother, each of whom play very significant roles in his day to day care. His relationship with his father is a troubled one. The child has obviously, in the past, had a good and loving relationship with his father. I find that the child does hold a fear of his father and that fear is justified, given his exposure to his father's actions as demonstrated by the evidence of the mother and the reports from the contact service.
I am satisfied that the child would be likely to be troubled, if not disturbed and perhaps frighted by some of the behaviour reported about the father during the supervised contact. At the same time, as I noted previously in these reasons, there were positive reports about interaction between the child and his father and it is clear that the child does enjoy spending time with his father when his father is not exhibiting any worrying behaviour.
The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continued relationship with the other parent
The mother in her evidence expressed a desire that the child have a relationship with father. I accept that is her wish. The father obviously wishes to spend time with the child and I am satisfied that he does have a willingness and ability to do that. I am concerned about his capacity to encourage a close and continued relationship between the child and his mother, I am also concerned about the father's ability to encourage a good and appropriate relationship between the child and his maternal grandmother given the very poor relationship that the father has with her.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The changes that are recommended by Dr R include a reduction in the time that the child spends with his father. It is anticipated by Dr R, and partially corroborated by Ms M, that a reduction in the time that the child sees his father would be beneficial to him and enable him to grow emotionally and psychologically, and hopefully become less troubled by any of his father's behaviour.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
This is not a particular issue in this case. The parties live reasonably close together and it is not a matter which has been an issue raised in these proceedings. The father has complained about an inability to communicate with the mother, but that falls into a different category.
The capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that the mother does have the capacity to provide for the child’s needs, including emotional and intellectual needs. I am satisfied that the father does not have that capacity. I am satisfied that the child’s emotional needs are in real jeopardy whilst spending time with his father given his father's evidence, behaviour and emotional state.
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
It is clear from Dr R’s evidence that the child is a vulnerable child. He is receiving support from his own psychologist and clearly he needs that support. He lives in a house where his mother is likewise vulnerable through her mental health.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I am satisfied that the mother has demonstrated an appropriate and positive responsibility as a parent. Again, I am not satisfied that the father has done that. I must say, however, that I am also not satisfied that the father has deliberately embarked on a course of action to cause him to not take up responsibilities of parenthood. There is an aspect of his personality makeup that, in my view, prevents him from being able to do so at this time.
Any family violence involving the child or a member of the child's family
I have accepted the evidence of the mother and the maternal grandmother in relation to the question of domestic violence and accordingly I find that the father has been violent to the mother during the course of the cohabitation. I am also satisfied that he has made threats which were clearly intended to be taken as threats by both the mother and the maternal grandmother and that those threats involved threats of violence to the mother and possibly others.
An Apprehended Violence Order was applied for in this matter, however it was withdrawn upon the father giving undertakings to the Court.
Other matters
This is a case in which final orders should be made if at all possible. There are no other facts or circumstances that need to be visited at this time. The remainder of the matters set out in s 60CC(4) and s 60CC(4)(A) I have referred to in giving these reasons so far.
Section 61DA
Section 61DA requires the Court to consider whether it is appropriate to make an order for equal shared parental responsibility. Given the fact that there is no capacity to communicate in this case and given that on the recommendation of the single expert there will be very limited contact between the father and the child, it is appropriate that an order for sole parental responsibility be made. During submissions there was no submission made by the father opposing the making of a sole parental responsibility order. There is evidence of violence which I have referred to, and that in itself would warrant the Court not making an order for equal shared parental responsibility.
Section 65DAA
This section does not have a particular application because I am proposing to make an order for sole parental responsibility for the child to repose with the mother.
Conclusion
The child is said to be a vulnerable child by Dr R. He is vulnerable in a psychological sense and he is vulnerable in a sense that he could develop a personality disorder. To add to this circumstance the mother is a vulnerable person. She has psychiatric illness. She has insight into the illness and she is learning to live with that disability, however, she does not appear to have the robustness to be able to deal with a difficult person like the father and also to cope with oppositional and unconstrained behaviour from the child which he has exhibited after spending time with his father.
The father is a difficult person. He is socially inept. He is capable of living and working in the community. He seems to do that satisfactorily. I have concerns for him, however, in any situation which may become confrontational between himself and people in authority. The behaviour he has exhibited with the staff of the supervision and contact centre illustrates the extent of his uncooperative and confronting behaviour.
I am satisfied that the child does have a foundation of a good and close relationship with his father. That relationship is constrained by the anti-social and peculiar aspects of the father's personality. I accept the child is apprehensive about his father's behaviour. I accept he would be on edge and concerned about angry outbursts from his father which I accept could manifest at any time and in any circumstances. I am satisfied that the child has a clear understanding that his mother and maternal grandmother have a fear of his father. I think it likely the child would regard his maternal grandmother as disliking his father.
The child must rely upon his mother and maternal grandmother to provide for his basic needs, both physical and emotional. I am satisfied the child has a close bond with his mother. I am satisfied she can do a good job parenting the child, provided she stays healthy. If she becomes sick again and becomes unavailable I believe the child would become emotionally isolated with only his maternal grandmother left to provide acceptable parenting for him. She does not want that role, although I have no doubt she would take it on should the mother become ill.
It therefore becomes imperative for the child that his mother not be placed under excess stressors as such a circumstance might see her health deteriorate. All of these facts and findings come together to compel a conclusion which is consistent with the child’s best interests, namely that the recommendations of Dr R be adopted.
The Proposed Orders
The Independent Children's Lawyer produced a minute of order which became Exhibit ICL5.
The mother supported those orders subject to matters I have referred to above. I propose to make the orders set out in ICL5 subject to the following:
a)I will extend the appointment of the Independent Children's Lawyer for a period of six months. As discussed with Counsel for the Independent Children's Lawyer it seems to me the Independent Children's Lawyer may be able to play a pivotal and protective role in the initial implementation of these orders;
b)All communication between the parties is to be by email, mail or text message to provide otherwise would, in my view place the mother under too much strain;
c)The father should not attend at the child’s school without written consent of the mother. Such an occasion may be for a parent/teacher interview in the absence of the mother and the child. The potential for the father to attend at the child’s school at any time may place a pressure on the child and the mother which would be distracting for the child and stressful for the mother;
d)It is the clear understanding from the evidence of Dr R that the father should not have any further contact with the child outside the four occasions each year;
e)The father should be able to apply to the Court for further orders when the child has attained the age of 11 years.
Should the father decide not to take up the opportunity to spend time with the child pursuant to these orders he should communicate that to the mother and the Independent Children's Lawyer. If he fails to take up time with the child as arranged and without giving notice that he will not be able to meet the particular occasion of time with the child the orders are to be suspended. It is clear that if the father simply failed to show up for a visit in circumstances where the mother had not prepared the child for same it could be expected to be very upsetting for the child and potentially damaging.
As stated earlier the mother should have an order for sole parental responsibility.
I certify that the preceding one hundred and twenty eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 18 August 2009
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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Jurisdiction
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