Stevens and Richards

FAMILY COURT OF AUSTRALIA

STEVENS & RICHARDS

[2010] FamCA 281

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child
FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT:

Mr Stevens

RESPONDENT:

Ms Richards

INDEPENDENT CHILDREN’S LAWYER:

Tim Mulvany

FILE NUMBER:

MLF

1397

2002

DATE DELIVERED:

14 April 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

30 April 2009, 25 November 2009, 22-25 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McCreadie

SOLICITOR FOR THE APPLICANT:

Hogg & Reid

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Crozier-Durham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Tim Mulvany & Co

Orders

That all previous parenting orders in relation to the child N born … October 2001, save those made on 25 November 2009 in relation to his time to be spent with M, shall be and are hereby discharged.
That the father shall have sole parental responsibility for N and that the father, as soon as practicable, shall notify the mother of all major decisions and/or major incidents relative to the exercise of sole parental responsibility.
That N shall live with the father.
That N shall spend time with the mother on at least four occasions each year, supervised by Berry Street Children’s Contact Services, and on such other occasions as may be available and notified by Berry Street Children’s Contact Services, and it is requested that Berry Street Children’s Contact Services furnish each of the mother and the father with reasonable notice as to availability of such occasions.
That the mother shall not have her son H present more than on each alternate occasion that N spends time with her.
That the mother and the father shall keep each other informed of contact telephone numbers and postal addresses.
That the mother shall be at liberty to send letters, cards and gifts to N, not more than fortnightly, and subject to the father’s discretion not to deliver such letters, cards, or gifts to N if deemed by him to be inappropriate.
That the father shall do all acts and things necessary to facilitate the Principal and/or delegate of the Principal of any school attended by N from time to time providing the mother, at her expense, with copy school reports, school photograph order forms, notices and newsletters.
That save with the express consent of the father and the Principal or a delegate of the Principal of the school, the mother shall be and is hereby restrained from attending at or within one hundred metres of any school attended by N when N is present at the school.
That the Independent Children’s Lawyer and/or the father shall be at liberty to provide to the Principal of any school attended by N, the Department of Human Services, the Director of Berry Street Children’s Contact Service, and any health and/or allied health professional assisting N, with a copy of the following:
(a)These orders;
(b)The report of Family Consultant Ms W dated 12 February 2010; and
(c)Reasons for Judgment delivered in these proceedings.
That the order for the appointment of the Independent Children’s Lawyer shall be and is hereby discharged.
That all existing applications shall be otherwise dismissed and the case removed form the list of cases awaiting finalisation.
That 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 the ICL has spoken with a Director of Berry Street Children’s Contact Service (Berry Street) and it has been indicated that Berry Street will facilitate at least four formal contact visits per year for the mother and N and additional visits by agreement for special occasions to include time around Mother's Day, N’s birthday and Christmas.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1397 of 2002

MR STEVENS

Applicant

And

MS RICHARDS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

N is 8½ years’ old. His parents separated nine years’ ago, before he was born. N lived with his mother and older sister M (now 18) until November 2005 when, aged 4, he broke a window at his mother’s home, climbed out, and was found wandering nearby. He suffered bad cuts and was taken by ambulance to hospital. The Children's Court placed him in his father’s care, where he has remained.
At first N saw his mother only under the supervision of the Department of Human Services. Between August 2008 and November 2009, he saw his mother about fortnightly, under supervision at Berry Street Child Contact Centre. In November 2009, I made an order for N to see his mother on three occasions in the presence of a paid supervisor. Unfortunately, the contact only occurred on one occasion. The versions differ as to what went wrong. I shall return to the topic, but on any view it was not successful.
The mother wants to see N each alternate week-end on an unsupervised basis. The father wants an order that her time with N occur only at Berry Street. His proposal is supported by the ICL. At present, Berry Street can offer only four visits per year, as well as other random visits including around Mother's Day, the child’s birthday, and Christmas, depending on availability and cancellations.

BACKGROUND

The father is Mr Stevens. He is aged 44 and is a tradesman. He is presently engaged in home duties and receives government benefits, although hopes to work at least part-time shortly. The mother is Ms Richards. She is aged 43. She works part-time as a children’s supervisor, studies horticulture, and receives government benefits.
The parties lived together from 1996, and separated in April 2001. N was born in October 2001. His half-sister M was born in November 1991. M was also removed from her mother’s care in 2005 and has since lived with foster parents. The mother has another son H, born in January 2007. H lives with her. His paternal family are regularly involved with him.
N and M did not see each other between November 2005 and April 2009. M applied to the Court to see N, and since interim orders on 30 April 2009 (later, final orders on 25 November 2009), N has been reunited with M and now sees her on a monthly basis. The father facilitates that. One month he drives N to see her in regional Victoria. On the alternate month, M drives to the area where N is living. The father is complimentary of M and how she has developed, and the important role she is now playing in N’s life.
The father lives in the north-east suburbs. The mother lived in central Victoria but tragically lost her home in the Black Saturday fires in 2009. She is presently renting, and hopes to re-build when her insurance claim and fire appeal monies are finalised.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The father relied upon the following:
(a)His Outline of Case document filed 16 March 2010
(b)His Amended Application filed 26 February 2010
(c)His affidavit filed 26 February 2010.
The mother relied upon the following:
(a)Her Response filed 18 March 2010
(b)Her affidavit filed 18 March 2010
The ICL relied upon the following:
(a)The Issues Assessment dated 21 April 2009 and the Family Report dated 12 February 2010, prepared by Family Consultant Ms W.
(b)The report of psychiatrist Dr K dated 18 September 2009
(c)The Berry Street report dated 16 November 2009
(d)Letters and a report from Ms O dated January to March 2010
(e)The Outline of Case Document.
Both the father and the ICL were represented by counsel. Until the final part of the hearing, a solicitor had been acting for the mother on a pro bono basis. He was unsuccessful in arranging counsel to appear for her on a similar basis at trial. Unfortunately the mother’s legal aid funding cap has been exceeded, and she was representing herself by the final part of the hearing.
I decided that the case should proceed in any event. The mother agreed. Each party wanted a determination, and there was no doubt that N’s best interests demanded a conclusion to the litigation. Since 2005 he has been the focus of Children's Court and/or Family Court litigation. In fact, the parties were litigating about him in this Court even before the events of 2005 that saw him placed in his father’s care.
The mother has a hearing difficulty. I ensured that adequate amplification was used in the court room and assisted in any way that she required so that she could hear and understand what was said. She also suffers “a classical paranoid personality disorder”, as diagnosed by psychiatrist Dr K. Those factors, combined with the unfamiliarity of the legal framework and the art of cross-examination, meant it could not have been easy for the mother to represent herself.
All that said, she was able to make her proposals, her position, and her views very clear. I gave her the relevant sections of the Family Law Act1975. Mr Crozier-Durham for the ICL agreed to cross-examine the father before her, to make things easier, and she was given extra time and reasonable assistance, as required.

RELEVANT LEGAL PRINCIPLES

Section 60B(1) sets out the objects of Part VII of the Act, to ensure 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.
Section 60B(2) sets out the principles underlying those objects. They 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).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the detail below.
Section 60CC(4) provides that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the Court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. In this case it was agreed that the father shall have sole parental responsibility.
The Court is then required to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)). Although the mother sought 50/50 shared care in her response, she conceded at the outset that it was not feasible. She sought a gradual build up to alternate week-ends of unsupervised time.

THE ISSUES

It is most convenient to consider the relevant issues within the framework of the s 60CC(2) and (3) considerations. I will deal first with the 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;
N has a meaningful relationship with his father who is his primary carer and mainstay. N also has a meaningful relationship with his mother, although he has spent only supervised time with her in recent years. He loves her and wants to see her.
I am satisfied that the father genuinely recognises N’s need for a meaningful relationship with his mother. However, equally genuinely, he is concerned by the potential psychological harm to N in spending unsupervised time with her. I am satisfied that his concerns are reasonably founded on past experiences, Dr K’s diagnosis of her personality disorder, the Family Consultant’s report and opinions, and the recent events surrounding efforts to arrange time between N and his mother outside the confines of a contact centre. I shall return to these aspects in detail as relevant below.
I turn to the additional considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
In the Family Report, Ms W described how N “continues to blossom” in his father’s care. She said that he was “revelling in the relief and contentment” of re-establishing his relationship with his half-sister, M. He was “very happy” living with his father and he “particularly enjoys the stability of life this has brought him.”
Ms W reported that N was quite clear that he missed his mother and would like to see more of her. However, he was equally clear that at times when his mother was present, life was quite tense.
Ms W described N as at pains to explain that he did not want to hurt his mother by expressing his concerns, however it was evident that incidents such as an argument that had taken place in public between his mother and the paid contact supervisor on the week-end before the interview with Ms W were “not unfamiliar and caused him considerable anguish”. As he said to Ms W, “It sucks” but he did not want his mother upset by hearing that.
Ms W described N as “quite protective” of his mother. It was clear that he “yearns for her approval and love”, and he found it distressing when the mother paid more attention to his brother H than him. N was developing a degree of resentment towards H, in addition to significant uncertainty about his mother’s commitment to him.
Ms W observed N with both parents. She noted that N was clearly very happy to be with his mother. However, he related to her “more as either a peer or parent” than as a child with a parent, endeavouring at all times to anticipate her needs and reactions. When observed with his father, she noted N as “very self-assured and quite unconcerned as to whether anything he said could impact on his father’s love towards him.”
(b)the nature of the relationship of the child with:
(i)     each of the child’s parents; and
(ii)   other persons (including any grandparent or other relative of the child);
(f)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)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother’s perspective is that she is a good, loving, and competent parent who has three lovely children to show for her efforts. It is true that M seems to have grown into a good young adult and N is going very well in his development. As three-year-old H was not the subject of these proceedings, I know significantly less about him.
There is no doubt that the mother loves her children, believes she is a good mother, and has mothered to the best of her ability. What her perspective fails to take into account is that for more than four years, M has been in the care of apparently excellent, consistent and stable foster parents, and N has been in the excellent and stable care of his father. Before that – and since – there have been genuine concerns about her parenting.
Dr K diagnosed the mother as presenting with “a classical paranoid personality disorder.” She does not see herself as having any psychiatric difficulties “but feels that authorities, and the courts, and some other people in her life have been against her.” Dr K said that a paranoid personality disorder is a condition that does not respond to treatment, “and as one gets older it unfortunately gradually increases in intensity.”
Dr K concluded:
From the psychiatric viewpoint alone, she is someone who would be capable of custody if there was no alternative. She is capable of supervised access, and depending on how supervised access proceeds, the question of unsupervised access will be a decision for the Court. The Court will hear the totality of the evidence, and be able to decide that issue.
Dr K did not believe she would be physically dangerous to N but, given her paranoid personality disorder, she clearly believes that N’s father, the courts, and the system are totally against her.
Dr K gained the impression that she is someone who “in her own way, has tried to do her best raising her three children.” He gained the impression from her that she got on reasonably well with M and was devoted to H. He said that the question of whether or not she has supervised or unsupervised access with N will depend upon:
…how [N] is progressing, her behaviour at supervised visits, and her behaviour if unsupervised access starts to take place.
The mother does not accept Dr K’s diagnosis. She referred to having obtained another psychiatric opinion. She did not produce it, nor had her solicitor referred to it in the lead-up to the final part of the hearing. She was legally represented in November 2009 when she sought unsupervised time with N. She was also represented when her trial documents were prepared. At neither point was another psychiatric report filed. In any event, the mother’s personality traits and behaviours, as diagnosed by Dr K, were observed by others, in particular the Family Report writer.
Ms W had the opportunity to interview the mother several times, in the broader context of interviewing all the immediate family members. In April 2009, when she prepared her Children and Parents Issues Assessment, Ms W observed that the mother had an antagonistic manner at times, refused to co-operate, and walked out of a session, but at other times she was co-operative and over-friendly. She spoke about herself as a victim of “a system that is working against her”: the police, DHS, and the Family Court, in particular. She indicated that N was taken from her because “accidents happen” – a position she held to in court – when referring to N breaking and climbing out of the window at her place.

Ms W acknowledged that the mother dearly loved her three children and she was very gentle and expressive when observed with the older two. However, she noted that the mother showed no more insight into the impact of her own issues on the children than she did during the earlier DHS involvement, when she was “insulted and humiliated” by the insistence that there be a psychiatric report.
In the Family Report, Ms W noted the mother’s mood as “unpredictable”. At times she spoke in a reasonable, intelligent and loving way. At other times in a monologue, and with difficulty in focussing. She refused to answer questions, saying to the Family Consultant that information as to where she would live if she had N in her care, or who she would have with her, were “none of your business”.
Ms W described the mother as:
…having dramatically unpredictable and quite extreme mood-swings and an unwillingness to listen to others or seek appropriate help.
Ms W was concerned that the mother demonstrated a lack of insight into her psychological state and thus into the impact she had on others. She was not able to manage every day situations, let alone challenging ones, in a manner that ensured a calm resolution. Ms W said that she may misinterpret situations within her paranoid framework, when in fact people are trying to assist her. The consequence is that conflict is a frequent part of her daily life.
Ms W observed that as the mother sees supervision as unjust and inappropriate, she has had considerable conflict with Berry Street staff, and argued publically in front of N with the recent paid supervisor, Ms O. It was primarily about who paid for movie tickets. The correspondence satisfies me that it was clear enough to the mother that she had to pay for Ms O, as well as herself and N. In any event, what matters is that N felt uncomfortable. This was the incident that prompted his description “It sucks”. That is a sad conclusion for a little boy who by then had not seen his mother for some weeks.
Ms W noted that the mother could not restrain herself from expressing her negative views about the father in N’s presence. The strength of those views was very clear. I shall return to that.
Ms W was also worried that the mother favours H over N, to N’s consternation. In the Berry Street report there were many references to a level of discomfort between N and H. Ms W’s concern that the mother would favour one child over the other was compounded by references in the DHS file to the same problem having occurred at an earlier time as between M and N.
Ms W acknowledged that N clearly wants time with this mother and craves her love and approval. However, she cautioned:
…[N] is aware that [the mother] has disappeared from his life before and has shown preference for [H] at Berry Street, in fact threatening to leave because of [N’s] attention-seeking behaviour. There is a real risk of [the mother’s] conduct in this regard leading to the child interpreting it as rejection. Should [N’s] sense of rejection by his mother intensify his behaviour could become increasingly testing in her presence, leading to a spiralling circle of anger and rejection between mother and child and intense psychological damage for [N].
The reference to the mother threatening to leave Berry Street is a reference to what occurred on 8 August 2009. The Berry Street report recorded that there was an issue between N and H. the mother was upset but was asked not to discuss things in front of N. She then said (in front of him):
I don’t need this…I’ve got [H]. If he’s going to be like this I might as well go home. Call his father. This is affecting my son.
According to the Berry Street report, the mother made such comments a number of times. Then, the mother started packing up. The staff explained she could not leave until N’s father arrived to collect him. In front of N, she started to talk about the impact “this” was having on her and H. The worker asked her not to discuss it in front of N. The mother told the worker in a raised firm voice, “Go on, ask him if he is going to change his behaviour,” referring to N.
Ms W concluded that due to her psychological issues, the mother is not able to provide a stable and safe environment for N even for short periods, without close supervision and limit-setting by a professional trained to provide such a service. She concluded:
Whilst [the mother] herself does not perceive that she has any psychological issues and therefore cannot understand the need for [N] to live with his father and not her, let alone have all his time with her supervised, all the professionals involved with [N] and [the mother] acknowledge that [N] is emotionally, if not physically, at risk in the unsupervised care of [the mother]. Sadly, [the mother] is incapable of providing consistent and secure boundaries not only for [N] but even for herself.
Ms W observed that N, who dearly loves his mother and was at pains to protect her, acknowledges the stress that he experiences when his mother suffers extreme mood-swings and displays what might be defined by others as paranoid behaviour. Ms W said:
…It was of note that if a Family Consultant of considerable experience felt the need to ensure that [the mother] was constantly placated in order to avoid conflict. [sic] If this is so for a professionally trained adult who has no emotional investment in the situation, the effort required by [N] to predict and pre-empt his mother’s moods must be an unbearable burden far beyond what should be expected of a child of eight should [sic] endure.
Ms W concluded that it is not safe for N to have other than closely and professionally supervised time with his mother indefinitely, and at this point the only service able to provide the appropriate level of supervision is Berry Street Contact Centre. She emphasised that although Berry Street can only provide a service where N and his mother would meet on less than a monthly basis, and even though more frequent time would be preferable, in the circumstances:
…fewer, safe and positive visits would protect [N’s] well-being and more frequent but less-secure visits, would place [N] at risk.
According to Ms W, N recognised the benefit of supervision at Berry Street. She noted that:
… whilst expressing frustration about the physical containment that visits at Berry Street necessitates, [N] expressed confidence that the supervisors there understood and knew best how to manage the situation in a manner which was less likely to cause upset for either himself or his mother.
There was a detailed report from Berry Street Children’s Contact Centre in relation to the almost 30 visits that occurred there between August 2008 and October 2009. In summary, the report built a picture of a devoted and loving mother, but one with an incapacity to protect N from her own views, unpredictability and mental state. N loved seeing her, but clearly needed the protection of the supervisors in light of those problems.
On 25 November 2009 I made an order for the mother to spend three periods with N outside of the Berry Street Contact Centre, supervised by a professional supervisor. At that time Berry Street could no longer offer the monthly supervised visits. The mother was pressing for unsupervised time with N. I took the view that leading up to the final part of this hearing, it would be appropriate and helpful to see how a less rigorous form of supervision might work. Unfortunately, it was not successful.
Ultimately only one of the three supervised occasions took place. The versions varied as to why the other periods did not occur. Ms O’s letters to the parties and the Independent Children’s Lawyer convinced me that every appropriate effort was made by Ms O and by the father, and that it was the mother’s obstructive attitude that meant those visits did not occur.
As to the visit that did take place on 26 January 2010, Ms O reported that N was happy to see his mother, initiated affection towards her, and told her he loved her. However, Ms O found it extremely difficult to supervise the mother. She was aggressive with Ms O. She ignored Ms O. She refused to co-operate with her. She would not follow directions from her. She tried to separate N away from her. And when N was returned to his father he reported that he did not like the first part of his time with his mother because “mum and [Ms O] had a bad fight.”
Although it is history, and was aired in detail in the Children's Court proceedings, in assessing the respective parenting capacities of the parties, I must refer to the incident in November 2005 when N broke the window and left his mother’s home. He had been alone in the house. I need not make a definitive finding as to whether it had been for a very short time as the mother claimed, or for a longer time as was claimed against her. For current purposes what is important is her lack of insight into the circumstances surrounding what occurred. She refers to it as “an accident”, and a number of times she referred to it with sadness and bitterness as being “an accident” that led to her losing her son.
What that account fails to consider is that for N, aged four, to find himself alone in the house, to go to his sister’s bedroom to locate an object with which to smash the window, and then to climb out, suggests a level of fear or distress that she could not admit. It seems he was quite badly cut, but again she minimised that. In passing, she made a reference to M’s involvement with the door being dead-locked and said something to the effect that around that time “[M] would sneak out at night. That’s what teenagers do.” [M] was just 14 at the time. It was surprising that the mother did not show a higher level of concern about her conduct at that point.
When it comes to M’s conduct, it seems that at around that time, she was out of control. She had for example at one point threatened little N by holding a knife to his throat in front of his mother. That incident gives me a glimpse into what life was like for N before he came into his father’s care. So does the evidence that he was a sad and confused little boy when he first came to stay. The evidence is that since then he has “blossomed”, and is a happy settled boy with a wonderful relationship with the father. Ms W was very complimentary about the ease in their relationship. There was nothing in the other expert reports to raise any concerns about it.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
I am satisfied that the father has the willingness and ability to facilitate a relationship between mother and child, but that he places severe limitations upon it out of a genuine concern for N’s well-being. He was extremely open in volunteering and acknowledging that N wants to see his mother, and that he loves her. He has been facilitating contact between N and his maternal family, and is willing to continue to do so. And although he was initially tepid about N taking up his relationship with his half-sister M, he did have a justifiable concern in light of the history. As things have gone well between M and N, the father has become positive and encouraging and very willing to facilitate the relationship with the mother’s daughter.
I am not satisfied that the mother is willing or capable of nurturing a relationship between N and his father. Her dislike and disrespect for the father were palpable. Throughout her evidence she referred to him as “that man” or “that person” and had nothing good to say about him. She is entitled to her own opinion of him, and it may be rooted in her experiences of him. I could not get to the bottom of that. What is important is that he has clearly done a very good job raising N and providing him with a stable and loving home. She could not give him credit for it.
What is also important is that the mother is incapable of protecting N from her views about his father. That was observed by the Berry Street workers and Ms W.
(d)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 or her 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;
N is settled and happy with his father and that relationship and stability must not be disturbed. He enjoys close family relationships on his father’s side. He is loving having a relationship again with M. He enjoys the time his father arranges for him to see his mother’s family. I am confident these positive parts of N’s life will continue in his father’s care.
There is little doubt that N would welcome safe time with his mother. It is a question of determining how it can be safe to the requisite degree, so that he is not psychologically or emotionally harmed.
N is likely to be sad to spend less time with his mother. However, I note Ms W’s evidence that on balance it will be better for him to spend less but safe and good quality time with his mother, than more but stressful time with her. I also note her evidence that if properly protected from his mother’s mood-swings and behaviour, N’s long-term relationship with her is better assured.
The mother wants N to experience a “normal” sibling relationship with H. However that relationship has its limitations given the current regime. It also has its limitations as N feels threatened by it. I accept from Ms W that N needs some time with his mother – some special time – without H.
(e)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;
The parties cannot afford paid supervision. The evidence was that it would cost at least $180 per visit. The mother was cross-examined as to whether she would be prepared to pay. It was the father who paid for the interim visit. I am not critical of the mother for saying she could not pay. It is expensive, and the fact that she wants to use her insurance and fire appeal monies to re-house herself and H is entirely reasonable. In any event, the expense of paid supervision is not the only obstacle. The expert evidence was very clear that the containment of a contact centre was the more appropriate setting in this case.
(g)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;
Any relevant aspects of this consideration are dealt with in other parts of these Reasons for Judgment.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not relevant in this case.
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
So far as relevant on the evidence, these aspects have been dealt with elsewhere.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is imperative for N’s well-being that the litigation is finished and that he has certainty around seeing his mother. Weighing all the evidence, including the recent attempts at paid supervision, and observing the mother’s demeanour, behaviour and evidence, I am satisfied that orders for strictly supervised time with N are the ones that are least likely to lead to further litigation.

CONCLUSION

It was conceded that realistically the father should have the sole responsibility in relation to the long-term and day-to-day decisions for N, and that N shall continue to live with him.
It is in N’s best interests to see his mother. He loves her. He needs her. She has a great deal of love to give to him. However I am persuaded by the expert evidence that in the sad circumstances of the mother’s paranoid personality disorder, it is in N’s best interests to see her only in a supervised setting, where his psychological well-being is best protected from her unpredictable mood-swings. At the age of eight, N should not be feeling either a sense of responsibility to protect his mother, nor that he must cautiously manoeuvre her mood-swings in order to keep an otherwise volatile situation as calm as possible.
Although ideally he would see his mother more frequently, Berry Street Children’s Contact Centre has limited availability for visits. The problem of insufficient Contact Centre places to meet the community’s needs is widespread. It is very unfortunate for children such as N who needs the specialist services, the protection, and the emotional safety that only a Contact Centre can offer. Ms O’s evidence gave me no confidence that the alternative of a paid supervised arrangement could work, and in any event it would be beyond the financial reach of the parties. I am grateful that despite its stretched resources, Berry Street has indicated the willingness to offer additional visits when cancellations or vacancies arise.
I am persuaded by the Family Report that less frequent but safe and successful periods of time spent with his mother will be better for N, than if he sees her more frequently but without the protection that the Berry Street Centre can offer. The expert opinion is that such supervision is required indefinitely. That opinion is underpinned by Dr K’s opinion that the mother’s personality disorder is unlikely to improve. If it does, that would be a new fact or circumstance to warrant a re-consideration of these arrangements.
Otherwise I propose orders largely in accordance with the Minutes of Orders prepared by the Independent Children’s Lawyer. They follow logically from the evidence, and offer N the protection he needs. I note that the ICL provided for the parents to keep each other informed of contact details and postal addresses. That is appropriate so that they can communicate if the need arises, and so that the mother can be kept informed of N’s progress. The mother did not want the father to know where she lives. The evidence was inadequate to satisfy me there was good reason for that. In any event, the order will provide only for an exchange of telephone numbers and postal addresses. In circumstances where N will not be at her home, the mother can retain privacy as to her residential address if she chooses.
I am conscious that the mother will be saddened by this decision. I hope that she can understand though that she is important to N, and even though she will be seeing him in a setting that is not ideal, the last few years in that setting have enabled N to maintain his meaningful relationship with her.

THE ORDERS

The orders I propose are as follows:
1.That all previous parenting orders in relation to the child N born … October 2001, save those made on 25 November 2009 in relation to his time to be spent with M, shall be and are hereby discharged.
2.That the father shall have sole parental responsibility for N and that the father, as soon as practicable, shall notify the mother of all major decisions and/or major incidents relative to the exercise of sole parental responsibility.
3.That N shall live with the father.
4.That N shall spend time with the mother on at least four occasions each year, supervised by Berry Street Children’s Contact Services, and on such other occasions as may be available and notified by Berry Street Children’s Contact Services, and it is requested that Berry Street Children’s Contact Services furnish each of the mother and the father with reasonable notice as to availability of such occasions.
5.That the mother shall not have her son H present more than on each alternate occasion that N spends time with her.
6.That the mother and the father shall keep each other informed of contact telephone numbers and postal addresses.
7.That the mother shall be at liberty to send letters, cards and gifts to N, not more than fortnightly, and subject to the father’s discretion not to deliver such letters, cards, or gifts to N if deemed by him to be inappropriate.
8.That the father shall do all acts and things necessary to facilitate the Principal and/or delegate of the Principal of any school attended by N from time to time providing the mother, at her expense, with copy school reports, school photograph order forms, notices and newsletters.
9.That save with the express consent of the father and the Principal or a delegate of the Principal of the school, the mother shall be and is hereby restrained from attending at or within one hundred metres of any school attended by N when N is present at the school.
10.That the Independent Children’s Lawyer and/or the father shall be at liberty to provide to the Principal of any school attended by N, the Department of Human Services, and any health and/or allied health professional assisting N, with a copy of the following:
(a)    These orders;
(b)    The report of Family Consultant Ms W dated 12 February 2010; and
(c)    Reasons for Judgment delivered in these proceedings.
11.That the order for the appointment of the Independent Children’s Lawyer shall be and is hereby discharged.
12.That all existing applications shall be otherwise dismissed and the case removed form the list of cases awaiting finalisation.
13.That 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
2.That the ICL has spoken with a Director of Berry Street Children’s Contact Service (Berry Street) and it has been indicated that Berry Street will facilitate at least four formal contact visits per year for the mother and N and additional visits by agreement for special occasions to include time around Mother's Day, N’s birthday and Christmas.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:

Date:

[2010] FamCA 281

14 April 2010

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