Timson and Warrick
[2011] FamCA 892
FAMILY COURT OF AUSTRALIA
| TIMSON & WARRICK | [2011] FamCA 892 |
| FAMILY LAW – CHILDREN - Best interests – Children to spend time supervised time with the father -Suitable supervisors –Sunset clause on supervision |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Timson |
| RESPONDENT: | Mr Warrick |
| FILE NUMBER: | SYC | 5678 | of | 2008 |
| DATE DELIVERED: | 24 November 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 27, 28 April, 25 May, 11,12,13 July, 18, 19 August, 19 October, 22 November 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Knox |
| SOLCITOR FOR THE APPLICANT: | Doolan Wagner & Callaghan |
| THE RESPONDENT IN PERSON: | Mr Warrick |
Orders
Orders 4, 5, 6, 8, 9, 10, 11, 15, 17, and 18 made in Family Court of Australia, proceedings number SYF 2972 of 2005 on 11 September 2006 be discharged. Otherwise all remaining orders remain in force as follows:
The father is to spend time with the children namely B born … 1999 and C born … 2000 (“the children”) as follows:
a.Commencing on Sunday 4 December 2011 from 10.00 a.m. until 5.00 p.m. and thereafter on Sunday 18 December 2011;
b.Commencing on 4 February 2012 from 9.30am Saturday to 5.30pm Sunday and for the same time on the first weekend in each calendar month during school term time;
c.During the Christmas school holidays commencing at the end of 2011 the fathers time in paragraph 2(b) is suspended and the father is to spend a 5 day block period with the children. That 5 day block is to commence at 9.00 a.m. on 1 January 2012 and conclude at 5.00 p.m. on 5 January 2012;
d.During the school holidays for the years commencing 2012 and thereafter the father is to have a 5 day block in each school holiday period with such period to be nominated by the mother in writing no less than 6 weeks prior to the commencement each school holiday period;
e.From 3.00pm until 8.00pm on Christmas Day each year;
f.On Father’s Day each year from 9.30am until 5.00pm;
g.For three hours on each child’s birthday from 4.00pm until 7.00pm; and
h.Such other time as may be agreed to in writing between the mother and the father.
For the purposes of Order 2, the father is to provide the mother, through the contact supervisor, with no less than one months written notice of his intention to spend school holiday time with the children, and one week’s notice of his intention to spend weekend time and time on Fathers’ Day, Christmas Day and the children’s birthdays, and in the event such notice is not provided then the time between the father and the children will, for that particular occasion, be deemed to be suspended.
The father will provide the mother, in writing, with full particulars of the address at which he will be spending time with the children during school holidays and, if any travel is proposed, he will provide the mother in writing with full particulars of that travel, as soon as reasonably practicable after the father arranges for same, and in any event the father will provide the mother with a full itinerary for the children no less than 21 days before undertaking such travel, including duration of trip, travel dates, addresses and phone numbers of all accommodation, and the time spent between the father and children during school holiday periods is conditional on such written notice being given in the timeframe provided.
The father is not to travel outside the Commonwealth of Australia with the children.
That the time spent referred to in Order 2 of these Orders is conditional upon that time being supervised by the paternal grandmother Ms D and/or the paternal grandfather Mr E and/or Mr F and/or Ms G or her nominee or Ms H or her nominee or an employee of J for Children, such supervisor and/or their nominee prior to supervising for the first occasion is to give an undertaking in writing to the mother’s solicitors on the following basis:
a.That he/she has been informed that the father has a history of using illicit substances, and that suffered a drug induced psychosis on 20 March 2008.
b.That he/she has been informed that the father has a history of criminal activity and reckless behaviour and has behaved in a manner such that his time with, and communication with, the children must be supervised.
c.That he/she will be present during all of the periods of time spent between the children and the father and, in particular, that he /she will be physically in the same room as the children at all times and within hearing distance of everything the father says, except as may reasonably be required by the supervisor so as to enable the supervisor to use the bathroom or take a shower.
d.That he/she will not permit any activities between the father and children which will take the supervisor out of the physical presence or hearing of the father at any time.
e.That he /she will not leave the children unattended in the father’s care.
f.That he/she will not delegate his/her role to any other person apart from Ms G or some other person approved by the mother in writing.
g.That he/she will notify the mother immediately in the event that the father removes the children from his/her care or appears to be affected by any drugs or alcohol or mental illness during supervised periods.
h.That he/she will notify the mother in the event any incident occurs during supervised time between the father and children which gives rise, in his/her view, to a potential risk to the children and will immediately remove himself/herself and the children from that risk and arrange to return the children to the mother.
i.That he/she will immediately notify the mother in the event the father intends to take the children outside of the Sydney Metropolitan Area.
j.That he/she will not allow the father to show the children any Orders or documents associated with these proceedings
k.That he/she will immediately notify the mother in the event that either child becomes ill or injured.
l.That he/she will not allow the father to discuss with the children them having telephone communication, email communication or other electronic communication with the father and will not allow the children to have access to mobile telephones whilst spending time with him.
m.That he/she will not discuss, and will so far as possible not allow the father, or any of the father’s relatives or acquaintances, to discuss, these proceedings with or in the hearing of the children.
n.That he/she will provide the mother, particulars of all travel plans that the father has made, or of any intention of the father to take the children out of the Sydney Metropolitan Area, as soon as reasonably practicable after he / she becomes aware of same.
o.That he/she will be present at and facilitate all changeovers and, in particular, that he/she will take all reasonable steps to ensure that the father does not arrive before him/her at the changeover venue, and, to facilitate changeover, at the commencement of periods of time between the father and children, he/she will contact the father once the mother has left the changeover venue, and at the conclusion of periods of time, he/she will contact the mother once the father has left the changeover venue, to collect the children.
p.That he/she will provide to the mother a copy of any report that he/she is instructed to prepare by the father within a reasonable timeframe.
The requirement for supervision is to cease when C attains the age of 14 years.
As each child attains the age of 15 years the time the father spends with that child will be subject to these orders and additionally to the child’s wishes.
All changeovers are to take place by way of collection and return of the children at McDonalds Suburb K and the father shall not be present at any changeovers when the mother is present. To give effect to this Order, for the purposes of changeover, at the commencement of all periods of time spent, the mother or her nominee will deliver the children to the supervisor at McDonalds Suburb K shortly prior to the commencement of each period of time spent, and the father will not attend changeover until the father has been advised by the supervisor that the mother has left. At the conclusion of all periods of time spent, the father will leave the children in the care of the supervisor at changeover, and shall not be present when the mother or her nominee collects the children.
10.The father is to provide to each supervisor a copy of these Court orders.
11.The father is to be responsible for the costs of the said supervision.
12.The father will continue to keep the mother informed as to the progress of any criminal proceedings against him. Further he is to advise the mother within 24 hours of him being charged with an offence.
13.The father be restrained from consuming illicit substances or alcohol for 48 hours prior to or during any periods of time he spends with the children.
14.Note that the mother, having sole parental responsibility for the children, is permitted to take the children overseas without the father’s permission, but the mother will notify the father of any intended overseas travel.
15.The father is restrained from contacting the children by telephone and/or email and/or any other electronic means, or from encouraging the children to contact him using such methods.
16.The father is restrained from contacting the mother except in the event of an emergency and for the purposes of Orders 3 and 4, the father will provide information to the supervisor and will request the supervisor provide such information to the mother.
17.That the father be restrained from providing the children with mobile telephones, from accessing the children’s email accounts, Facebook accounts, school portal and any other accounts that the children may operate from time to time, and setting up any such accounts for either child at all.
18.That the father be restrained from doing the following:
a.Attending at any property where the mother may reside from time to time;
b.Coming within 200 metres of any property where the mother may reside from time to time; and
c.Approaching the mother or the children except pursuant to these Orders.
19.The mother will keep the father informed, in writing, of B’s medical condition and dietary requirements and the father will ensure that he reads all documentation and information provided by the mother and shall do all acts and things necessary to ensure that B is able to follow his treatment correctly whilst the father is spending time with him including purchasing appropriate foods and administering medication.
20.The father is to ensure that the children attend any extra-curricular activities in which they are involved during the time the children are in his care. In relation to any time when the children are to be in his care pursuant to these orders the mother is to give the father not less that three weeks notice of any extra-curricular activities scheduled for the children at that particular time. The father is to note that the children’s extra-curricular activities may require the father to have more than one supervisor available during those activities.
21.The mother shall provide the supervisor with information concerning activities for the children that are due to take place during periods when the father is spending time with the children. In relation to birthday parties and the like as soon as she becomes aware of same she is to advise the father, through the supervisor and the father will advise the mother, through the supervisor, within 48 hours of receiving such notice, whether he will facilitate the children attending such activities and it is noted that this will enable the mother to make plans for the children and to inform the children about whether they will be able to participate in a particular activity during time spent with the father.
22.The supervisor Ms D (the paternal grandmother) is not to consume any alcohol during a 12 hour period before any period of supervision nor during any period of supervision.
23.That each 6 months following the making of these orders the father is to undertake a secure hair drug toxicology screen at P Pathology or other recognised Pathology laboratory capable of conducting hair screening tests and the father is to provide a sample of hair greater than four centimetres for such tests.
24.Within 7 days of the receipt of that test the father is to provide the test result to the mother.
25.I note that the matter has now concluded before the Court and all outstanding applications are dismissed.
26.Pursuant to s65DA(2) and s62B, 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 Timson & Warrick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5678/2008
| Ms Timson |
Applicant
And
| Mr Warrick |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings before the Court concern the parenting of two children. They are B born in 1999 (aged 12) and C born in 2000 (aged 10). Both parents seek orders which would see the children live with Ms Timson (“the mother”) and spend supervised time with the Mr Warrick (“the father”) The most significant areas of dispute are:
a)The nature of supervision required during the time the children spend with the father;
b)The identity of the supervisors;
c)The cost of the supervision;
d)The frequency of the occasions the children spend time with the father; and
e)The duration of the time the children should spend with the father.
The father, by his own admission, has been addicted to non prescription drugs and alcohol. He has suffered psychotic episodes while under the influence of either drugs or alcohol or both. Had the children been exposed to their father at such times there seems no doubt they would have been frightened by his behaviour.
In September 2010, the father admitted himself to a rehabilitation hospital (L Hospital at Suburb M) and as a result of that admission commenced what he has termed “my recovery”. The father acknowledges that it is still early days for his recovery and he says he understands that there are significant chances he may relapse. Nonetheless he claims to be drug free and alcohol free since August 2010. He has changed his social network and joined the surf life saving club at Newport.
The father seeks to have either his partner, Ms N, one of his parents or his brother Mr F appointed by the Court as supervisors of his time with the children. The mother says only a professional non-relative of the father will suffice.
To add to this complicated and difficult set of facts both parties agree that the children know nothing of their father’s drug and alcohol addictions. They do not know that the father has served two periods of incarceration. The parties have not agreed as to how and when the children should be told.
The children appear to enjoy their time with their father when it occurs. It has now been many months since the father has spent time with the children. He says he cannot afford to pay a professional supervisor.
There is now significant estrangement between the mother and the father’s parents. Although all parties professed to be tolerant and supportive of the other so far as the children are concerned, I do not consider they are able to be so given the level of suspicion the mother now has of both of the father’s parents. This suspicion, at least in part, arises from the mother losing confidence that the father’s parents would be truthful with her about the father’s health condition at important times. The facts in the case would, in my view, justify the mother in concluding that the father’s parents had deliberately concealed from her an episode of psychosis suffered by the father at a time he was to spend time with the children. That time was cancelled without any proper disclosure to the mother of the reasons for the cancellation.
This case contains facts which appear to be presenting before the Court with greater frequency than has been the case previously. That is, it illustrates the anguish of parents who feel powerless to help or turn around a drug addicted adult child, particularly where that adult child is now a parent to children of their own. Grandparents find themselves isolated from their grandchildren because they chose to help their now adult child reform his/her life.
The case further illustrates a growing dilemma for the Court in dealing with drug and alcohol addicted parents who have a great deal to offer children when they are not controlled by drug and/or alcohol use/abuse. The issue which arises in this case, i.e. the degree or nature of supervision required in such a case, is featuring more and more as an issue in cases heard in this Court. The cost of a professional supervisor is frequently an issue as is the artificiality of the environment created for the children in which to interact with a parent.
In this case the father has quite candidly said that in order to earn enough money to pay a supervisor of his time with the children, he would be forced to re-enter the world of drug dealing. I should add that the mother disputes that assertion.
The Orders Sought By Each Party
On 27 April 2011, each of the parties tendered, without objection, a Minute of Order which they were seeking. The applicant mother’s minute was marked as exhibit M1 and is as follows:
1. That the Orders 4, 5, 6, 8, 9, 10, 11, 15, 17, and 18 made in Family Court of Australia, proceedings number SYF 2972 of 2005 on 11 September 2006 be discharged.
2.That the father spend time with the children namely [B] born … 1999 and [C] born … 2000 (collectively “the children”) as follows:-
(i) From 9.30am Saturday to 5.30pm Sunday of the first weekend in each calendar month.
(ii) During the Christmas school holidays in each year the fathers time in paragraph 2(i) is suspended and the father will spend a 5 day block period in the Christmas school holidays of each year with the children, with such period to be nominated by the mother in writing no less than 2 calendar months prior to the commencement of the Christmas school holiday period.
(iii) From 3.00pm until 8.00pm on Christmas Day.
(iv) On Father’s Day from 9.30am until 5.00pm.
(v) For three hours on each child’s birthday from 4.00pm until 7.00pm.
3.For the purposes of Order 2, the father will provide the mother, through the contact supervisor, with no less than one calendar month’s written notice of his intention to spend weekend and / or school holiday time with the children, and one week’s notice of his intention to spend time on Father’s Day, Christmas Day and the children’s birthdays, and in the event such notice is not provided then the time between the father and the children will not take place.
4. The father will provide the mother, in writing, with full particulars of the address at which he will be spending time with the children during school holidays and, if any travel is proposed, he will provide the mother in writing with full particulars of that travel, as soon as reasonably practicable after the father arranges for same, and in any event the father will provide the mother with a full itinerary for the children no less than 21 days before undertaking such travel, including duration of trip, travel dates, addresses and phone numbers of all accommodation, and the time spent between the father children during school holiday periods is conditional on such written notice being given in the timeframe provided.
5. For the purposes of Order 4 the father is restrained from taking the children to [Suburb O] or to any area that is more than 20 kilometres from emergency services as well as on any travel outside the Commonwealth of Australia.
6. That the time spent referred to in Order 2 of these Orders is conditional upon that time being supervised by [Ms G] or her nominee or [Ms H] or her nominee or an employee of J for Children, such supervisor and / or their nominee to:
(i) Be professionally qualified to be a supervisor and not being the father’s father, mother or relative.
(ii) Give an undertaking in writing to the mother’s Solicitors on the following basis:-
(a) That he /she has been informed that the father has a history of using illicit substances, and that suffered a drug induced psychosis on 20 March 2008.
(b) That he / she has been informed that the father has a history of criminal activity and reckless behaviour and has behaved in a manner such that his time with, and communication with, the children must be supervised.
(c) That he / she will be present during all of the periods of time spent between the children and the father and, in particular, that he / she will be physically in the same room as the children at all times and within hearing distance of everything the father says, except as may reasonably be required by the supervisor so as to enable the supervisor to use the bathroom or take a shower.
(d) That he / she will not permit any activities between the father and children which will take the supervisor out of the physical presence or hearing of the father at any time.
(e) that he / she will not leave the children unattended in the father’s care.
(f) That he / she will not delegate his / her role to any other person apart from [Ms G] or some other person approved by the mother in writing.
(g) That he / she will notify the mother immediately in the event that the father removes the children from his / her care or appears to be affected by any drugs or alcohol or mental illness during supervised periods.
(h) That he / she will notify the mother in the event any incident occurs during supervised time between the father and children which gives rise, in his / her view, to a potential risk to the children and will immediately remove himself / herself and the children from that risk and arrange to return the children to the mother.
(i) That he / she will immediately notify the mother in the event the father intends to take the children outside of the Sydney Metropolitan Area.
(j)That he / she will not allow the father to show the children any Orders or documents associated with these proceedings
(k) That he / she will immediately notify the mother in the event that either child becomes ill or injured.
(l) That he / she will not allow the father to discuss with the children them having telephone communication, email communication or other electronic communication with the father and will not allow the children to have access to mobile telephones whilst spending time with him.
(m) That he / she will not discuss, and will so far as possible not allow the father, or any of the father’s relatives or acquaintances, to discuss, these proceedings with or in the hearing of the children.
(n) That he / she will provide the mother, particulars of all travel plans that the father has made, or of any intention of the father to take the children out of the Sydney Metropolitan Area, as soon as reasonably practicable after he / she becomes aware of same.
(o) That he / she will be present at and facilitate all changeovers and, in particular, that he / she will take all reasonable steps to ensure that the father does not arrive before him / her at the changeover venue, and, to facilitate changeover, at the commencement of periods of time between the father and children, he / she will contact the father once the mother has left the changeover venue, and at the conclusion of periods of time, he / she will contact the mother once the father has left the changeover venue, to collect the children.
(p) That he / she will provide to the mother a copy of any report that he / she is instructed to prepare by the father within a reasonable timeframe.
7. That all changeovers take place by way of collection and return of the children at McDonalds [Suburb K] and the father shall not be present at any changeovers when the mother is present. To give effect to this Order, for the purposes of changeover, at the commencement of all periods of time spent, the mother or her nominee will deliver the children to the supervisor at McDonalds [Suburb K] shortly prior to the commencement of each period of time spent, and the father will not attend changeover until the father has been advised by the supervisor that the mother has left. At the conclusion of all periods of time spent, the father will leave the children in the care of the supervisor at changeover, and shall not be present when the mother or her nominee collects the children.
8. That the father be responsible for the costs of the said supervision.
9. The father will continue to keep the mother informed as to the progress of any criminal proceedings against him in the Local Court or the District Court of New South Wales and any other criminal proceedings in which he is involved or becomes involved within 24 hours of him being charged with an offence.
10. That the father be restrained from consuming illicit substances for 48 hours prior to or during any periods of time he spends with the children.
11. Note that the mother, having sole parental responsibility for the children, is permitted to take the children overseas without the father’s permission, but the mother will notify the father of any intended overseas travel.
12. That the father be restrained from contacting the children by telephone and / or email and / or any other electronic means, or from encouraging the children to contact him using such methods.
13. That the father be restrained from contacting the mother except in the event of an emergency and for the purposes of Orders 3 and 4, the father will provide information to the supervisor and will request the supervisor provide such information to the mother.
14. That the father be restrained from providing the children with mobile telephones, from accessing the children’s email accounts, Facebook accounts, school portal and any other accounts that the children may operate from time to time, and setting up any such accounts for either child at all.
15. That the father be restrained by way of injunction, pursuant to section 114(2A)(a)-(c) of the Family Law Act 1975, from doing the following:-
(a)Attending at any property where the mother may reside from time to time;
(b) Coming within 200 metres of any property where the mother may reside from time to time;
(c) Approaching the mother or the children except pursuant to these Orders.
16. The mother will keep the father informed, in writing, of [B’s] medical condition and dietary requirements and the father will ensure that he reads all documentation and information provided by the mother and shall do all acts and things necessary to ensure that [B] is able to follow his treatment correctly whilst the father is spending time with him including purchasing appropriate foods and administering medication.
17. The mother shall provide the supervisor with information concerning activities for the children that are due to take place during periods when the father is spending time with the children including birthday parties, dancing concerts and the like, as soon as she becomes aware of same, and the father will advise the mother, through the supervisor, within 48 hours or receiving such notice, whether he will facilitate the children attending such activities and it is noted that this will enable the mother to make plans for the children and to inform the children about whether they will be able to participate in a particular activity during time spent with the father.
The respondent father’s minute was marked as exhibit F1 (with later amendments included in exhibit F3) and is as follows:
1. That the operation of orders 4,5 and 6 made in the Family Court of Australia, proceedings number SYF 2972 of 2005 on 11 September 2006 be discharged.
2. That the operation of all interim orders made in the current proceedings be discharged.
3. That the Father spend time with the children of the parties namely [B] born … 1999 and [C] born … 2000 as follows: -
a.From 1.00 pm to 4.00pm on the first Saturday following the making of these orders and on each alternate Saturday thereafter for a period of 6 weeks. .
b.On the second Saturday following the conclusion of the operation of order 3a from 12.00pm to 5.00pm on each alternate Saturday for a period of four weeks and then from 9.30am to 5.00pm each alternate Saturday thereafter.
c.After a period of 4 months from the making of these orders and following two weeks from the expiry of order 3 b from 9.30am Saturday to 5 pm Sunday each alternate weekend during term time.
d.After a period of 9 months from the making of these orders and following two weeks from the expiry of order 3 c from after school Friday to before school Monday each alternate weekend during school term time.
e.In each school holiday period commencing end of term 3 2001 but excluding summer holidays, from 9.30 am on Saturday following the last day of school until the following Saturday at 5 pm.
f.In each summer school holiday for two weeks to end 5 pm on the Saturday before school resumes and commencing 9.30 am on Saturday two weeks before.
g.Commencing Christmas 2011 and each alternate year thereafter from 6pm Christmas Eve to 6pm Christmas day and from 2012 and each alternate year thereafter from 6pm Christmas day until 6pm Boxing day.
h.On each childs Birthday from after school until 8pm if the Birthday falls on a weekday and from noon to 9pm on a non-school day if not otherwise with the Father.
i. On the Father’s Birthday from noon to 9pm.
j.On the weekend of Fathers day if you otherwise with the Father for the weekend from after school Friday until before school Monday.
k.From B’s 13th Birthday the Father is to have telephone, Skype and email contact with both children and mother is to facilitate this contact whilst the Father will provide mobile phones and computers as well as maintain appropriate accounts to allow this.
4. That the “time spent” referred to in order 3 of these orders be conditional upon that time taking place being supervised by [Ms D], [Mr E], [Mr F], [Ms N], [Ms G] or her nominee, or other supervisor as agreed between the parties, such supervision to continue until [B’s] 16th birthday.
5. The Supervisors shall give an undertaking to the Court to : -
i. That he/she will be present during all the periods of time spent between the children and the father.
ii.That he/she will not leave the children unattended in the father’s care.
iii. That he/she will not allow the father to remove the children from their care.
iv. That he/she will remove from the care of the father immediately if he appears affected by drugs or alcohol or appears mentally unwell and will immediately inform the mother.
v. That he/she will notify the mother immediately in the event that the Father removes the children from his/her care.
vi. That he/she will not delegate his/her role to any other person apart from an approved supervisor.
vii. That he/she will be present at or facilitate all changeovers.
viii. That he/she will not take or be under the influence of alcohol or drugs whilst supervising the children.
6. That other than as provided for in Order 3 collection and return will occur at McDonalds, [Suburb K].
7. That each Six months following the making of these orders the Father undertake a secure hair drug toxicology screen at P Pathology or other recognised Pathology laboratory capable of conducting hair screening tests and the Father provide a sample of hair greater than four centimetres for such tests.
8. Within 7 days of the receipt of that test the father is to provide the test result to the mother.
9. That the father and mother at all times shall provide to the other their contact number and address and immediately notify the other of any changes.
10. That the children’s schools be at liberty to issue copies of all school reports, notices, invitations, newsletters and all other relevant documents to both parents.
11. Both parties be at liberty to attend any school event and extracurricular school event in which the children are involved.
12. The father undertakes not to approach or contact the mother at any event at which they are both present.
13. The parents shall advise the other forthwith of any serious illness, injury or medical emergency in respect of the children.
14.The parties inform each other as soon as practicable of any medication required by the children.
15. That neither party denigrate the other or allow a third party to do so in the presence of the children.
16. The mother is to inform that the Father by email of the time and place of any extracurricular events that the children attend.
There was no Independent Children's Lawyer appointed for the children in this case. With the benefit of hindsight it may have been a better course of action to have appointed one to assist. However, at the time it became apparent that an Independent Children's Lawyer could assist the hearing had commenced and the impact of an adjournment and the further involvement of the children with the litigation seemed not in their best interests. No application was made for the appointment of an Independent Children's Lawyer once the matter was before me.
The Father’s Application to Re-open on 19 October 2011
Prior to being able to deliver a judgment in this matter the father applied to the Court to re-open his case to admit two further pieces of evidence. The first evidence sought to be tendered by the father was the outcome of the proceedings brought against him in the Local Court alleging an assault by him upon Ms N. In addition he sought to tender a document setting out the result of the proceeding seeking an Apprehended Violence Order (“AVO”) against him on behalf of Ms N. I propose to allow the father to rely on that evidence. The evidence discloses that the proceedings were withdrawn and/or dismissed. That result is unsurprising given the evidence in the proceeding before me by Ms N. Is was quite clear that Ms N would not be co-operating in any way with the prosecution of those charges and was prepared to deny the facts presented by police allegedly on her behalf.
The second piece of evidence which the father wished to place before the Court is an Affidavit sworn by his mother Ms D on 7 October 2011. That evidence is sought to be relied upon to establish that when the mother said in her evidence in this Court that she would not oppose the paternal grandparents having telephone contact with the children she was being untruthful. The evidence canvasses conversations with the maternal grandmother, the paternal grandfather and the supervisor Ms H. It also purports to address contact by phone with the mother’s residence.
The re-opening of this case to allow the further evidence of Ms D is opposed by the mother. She submits that there is no order requiring the mother to provide telephone time for the paternal grandmother with the children. Should the evidence be admitted it would require a response by the mother. There may be many explanations for the circumstances outlined by the affidavit so far as it attributes behaviour and action to the mother. There is no certainty that the deponent actually rang the mother’s correct number as she did not include the number of the service she says she contacted in her affidavit. It may be necessary for the mother to call other evidence in response, all of which would be costly to her. Any order for costs made to compensate the mother would be of no effect as the father’s evidence is that his financial circumstances are meagre.
In the circumstances I would not exercise my discretion to permit the re-opening of the father’s case to allow the further evidence from the paternal grandmother as outlined.
I should add that the delay in the provision of a judgment in this matter has occurred because of the pressure of work currently experienced in this Court. I have been required to use time which had been set aside to write judgments in order to hear urgent applications and other interlocutory applications which appear to have priority.
The Evidence Relied Upon By Each Party
Each of the parties provided a case outline document to the Court. The mother in her document identified the following documents and affidavits as relied upon by her:
Mother’s Amended Initiating Application filed 3 April 2009;
Affidavit of the mother affirmed 8 April 2011;
Affidavit of Ms Q affirmed 8 April 2011;
Expert report of Dr R dated 25 February 2009;
The mother also read the judgment of the Court of 11 September 2006 and a Family Report of Ms S dated 14 December 2010.
The father identified the following documents as relied upon by him:
Response to Initiating Application filed 22 May 2009;
Affidavit of the father sworn 7 April 2011;
Affidavit of Ms D sworn 7 April 2011;
Affidavit of Mr F sworn 7 April 2011;
Affidavit of Ms N sworn 7 April 2011;
Afidavit of Dr T sworn 17 June 2011;
Affidavit of Mr E sworn 22 April 2011;
Affidavit of Ms G sworn 12 April 2011.
The Exhibits
In relation to the father’s criminal past, the following exhibits were tendered.
Exhibit M2 contains records from Suburb M Local Court House. The records relate to specific Court events:
f)23 March 2011: Appearance in relation to a charge of use unregistered registrable Class A motor vehicle; Class A vehicle not display registration label; Use vehicle on road related area m/v tax not paid; use uninsured motor vehicle – pleading not guilty.
g)12 March 2011: Interim ADVO against father brought by police. An order made.
h)22 March 2011: Charge of assault occasioning Actual bodily harm (domestic violence related); Common Assault (domestic violence related); Use carriage service to threaten serious harm.
Exhibit M3 contains a COPS event entry of 15 May 2011, detailing an incident between the father and a tenant in the house at V Street that resulted in the police being called (no further action was taken).
Exhibits M4 contains a COPS event entry of 9 March 2010, detailing a break and enter perpetrated by the father in Suburb W, in which a candelabra was stolen and damage was done to property.
Exhibit M11 and M14 contain records from X Local Court in relation to charges faced by the father following the incident of 9 March 2010: “Aggravated enter dwelling with intent, Break and Enter dwelling house or building commit serious indictable offence, unlawful entry on inclosed (sic) lands” listed before Court 7 September 2010. On the third of these charges, the defendant was unconditionally discharged pursuant to s 32 of the Mental Health Act (NSW). The related charge of intentionally or recklessly destroy/damage property was before the Court on 8 March 2011; the defendant was discharged pursuant to s 32 of the Mental Health Act on the condition that he attend counselling or treatment for 6 months and that he not consume alcohol or any drug not prescribed by a qualified medical practitioner.
Exhibit M17 contains COPS event entries relating to Mr Warrick:
a)The first entry is a police report which provides details of an incident on 13 October 2008, in which a car belonging to the Father was involved in an accident in Suburb Y. It is alleged the vehicle left the scene.
b)The second entry is a report of 7 September 2008 detailing the release of the picture of a man on identity cards found during a police operation. On publication of the photo, two telephone callers contacting Crimestoppers identify the photo as being of the father.
c)The third entry is a police report of the events of 20 March 2008. The report details the police attending the unit in Suburb Z and finding the father on a neighbour’s balcony. In the father’s unit, drugs and drug paraphernalia as well as significant quantities of cash were found. The father appeared to be under the influence of drugs and was taken to Suburb M hospital. Charges were laid and more were anticipated pending the analysis of the substances found.
d)The fourth entry relates to events of 29 December 2007. The police note that the father was stopped for driving the wrong way around a roundabout, and on being stopped, was found to be wanted for an assault in 2006. The father was also found to have some $7,500 in cash in the car. The father was then arrested.
e)The fifth entry relates to an assault on 9 July 2006. In a nightclub, the victim of the assault attempted to break up a fight on the dance floor. The person of interest (allegedly the father) struck the victim 8 times to the side of the face, but was restrained by security. He later ran away, but later rang the club to apologise. Police went to the address of father, but he was not at home.
f)The sixth entry is second account of the arrest of 29 December 2007, also detailed in the fourth entry.
g)The seventh entry relates to events of 29 June 2000. Police executed a search warrant of the father’s home and found quantities of cannabis and ecstasy tablets.
h)The eighth entry is dated 14 March 2000 and details a motor vehicle incident involving the father and another driver. After an initial incident of one party cutting the other off in traffic, the parties stopped and words were exchanged. Police became involved later. The incident was reported but no action was taken. There was no damage to either vehicle.
i)The ninth entry relates to events of 28 December 1994, and details an armed robbery for which the father was later imprisoned. The report says that the father and another man confronted a shop owner as he left his shop for the evening, waving a pistol and demanding entry. The father hit the victim twice across the back of the head, once with the pistol, before running off with two shopping bags. The two men were later apprehended with the items stolen, the pistol and a flick knife, and were arrested.
Exhibit M18 contains Police reports relating to the Domestic Violence incidents involving Ms N. A Report of 2 March 2011 states that the Police attended the father’s house in response to a phone call from Ms N. When they arrived, Ms N stated that she did not need any assistance and showed no sign of injury. A report of the 12 March states that the police attended the father’s house looking for the father, following phone calls from Ms N. The police arrested the father for assaulting Ms N. Later, Ms N refused to make a complaint and she stated that she was afraid of what the father would do to her and did not think that the police could protect her. She told police that the violence had been going on for some time and was now “affecting her life in many ways”.
Exhibits M23 and M25 contain newspaper clippings related to the father. M23 contains page 76 the Sun-Herald of 7 September 2008 including the photograph of the father found on false credit cards and a request for information. M25 contains Page 5 of The [Suburb M] Daily of 22 March 2008 including a news report of the father’s psychotic episode of 20 March 2008
Exhibit M24 contains the transcript of the triple 0 calls made by Ms N on 11 March 2011.
a)5.55 p.m. 11 March 2011: Ms N tells the operator that her ex-boyfriend is coming over “to beat the shit out of me, and he’s done it many times before”. She tells the operator that “he’s really big … he’s aggressive”
b)6.02 p.m. 11 March: There is a male voice yelling in the background, whom Ms N addresses as Mr Warrick. The male leaves and comes back as Ms N asks for the police to come. Then he leaves again. Ms N tells the operator that she was hurt on the two days preceding her phone call.
Exhibit M28 contains a record from the Attorney-General’s Department, being the Court records relating to the domestic violence allegations against the father. It includes the charges against the father: Assault Occasioning Actual Bodily Harm (dv), Common Assault (dv), Use of carriage service to threaten serious harm, and common assault. Contained therein is also the bail undertaking of the father to “stay 100 meters (sic) of the premises at which the protected person may from time to time reside or other specified premises: 37-39 V Street”; the interim AVO against the father dated 5 April 2011.
In relation to the medical evidence relating to the father, his drug use and the major incidents adverted to in the hearing, the following exhibits were tendered.
Exhibit M8 contains a medico-legal report by Dr AA, dated 7 July 2008, on the father in relation to the episode in March 2008. The Doctor opines that the father was labouring under a psychosis at the time, and should qualify for application of s 32 of the Mental Health act. There is a second letter of 30 May 2007 to Reid Family Lawyers, which states the father had not been to see him since the previous November, and that follow-up appointments negotiated at that time never eventuated. The exhibit also contains handwritten notes from Dr AA from the sessions with the father in June 2008.
Exhibit M10 contains the father’s patient records at L Hospital. The father says in his initial assessment that his drug intake was infrequent and that he had not taken cocaine since the Mach 2010 incident. Later progress notes indicate that after initial reluctance, the father was attending Alcoholics Anonymous and Narcotics Anonymous meetings on a daily basis. Further clinical notes state that on 8 December 2010, the father admitted that his ‘ex-girlfriend’ (presumably Ms N) was pregnant and that he was feeling stress over the decision as to whether to keep the baby. The father is reported to have completed the step down program 15 December 2010.
Exhibit M12 contains Suburb M Hospital records from the father’s involuntary admission in March 2008. The report includes a detailed account by the father of what happened in the 20 March 2008 incident (as told directly after the father was admitted). The record states that he was brought in after police found him on a balcony of a unit shouting for help. The father had stated that two men were in the unit with guns and that they had chased him from his unit after breaking into his unit, beating him up and injecting him with drugs, then chasing him across the balconies of the building. On admission, the father’s urine tested positive for cocaine. The diagnosis was “brief psychotic episode ?drug induced”. The records show he was discharged on 23 March 2008.
Exhibit M19 contains a Forensic psychiatric report for Mr Warrick 10 September 2001, written by Dr BB. The report details the father’s account of his early drug use “year in a drug haze” due to his parents’ separation, which paused as he progressed his landscaping career, before reappearing when he suffered a back injury. Dr BB notes the father’s remorse and states that he is cautiously optimistic that the father will remain off drugs.
The Issues
When the hearing resumed on Wednesday 27 April 2011 each of the parties tendered a Minute of Order which would be sought. Each of those minutes of order represented a change from the orders sought by each party earlier in the proceeding.
The issues which stood out as the important for the parties to have determined are as follows:
The extent of the time the children should spend with the father;
The necessity of supervision of the father’s time with the children to be carried out by a professional supervisor (at a cost to be borne by the father) rather than a close family member of the father’s family, including his partner.
Part of the issue relating to the necessity for a professional supervisor is the question of the mother’s capacity to tolerate an order for supervision by a relative of the father and not have that circumstance impact upon her ability to function as an effective and supportive principal carer for the children.
A further issue attending the question of the type of supervision required for the children’s time with their father is an assessment of the risk which might be posed to the children in their father’s care and an assessment of the ability of each of the proposed supervisors, whether promoted by the mother or the father, to protect the children from the worst case scenario.
How and when the children should be told of their father’s drug and alcohol addiction and his time in gaol, in light of the children’s ages, their growing comprehension of their situation, and the likelihood of ascertaining the information from other sources.
Whether the children should be informed of any illegal activities the mother may have engaged in while with the father or otherwise. What those illegal activities might be was at issue, as the father was unwilling to give any specific details.
At the conclusion of the hearing the principal issues were still as recorded above although they were stated succinctly as :
The issues are:
1. Should there be paid supervisors or the supervision be provided by the fathers family and his partner?
2. The duration of the time the children should spend with the father.
3. Should there be ancillary orders such as toxicology testing?
It is the mother’s case that to allow the father’s family to supervise his time with the children is to expose them to an unacceptable risk of harm.
Credit
The Mother
The mother gave her evidence in a straightforward and apparently honest manner. She appeared to consider her answers carefully and appeared to understand the importance of not giving a misleading answer.
I observed her in the witness box. I noted that she appeared most uncomfortable being questioned by the father, notwithstanding he did it in a quiet and apparently unthreatening manner. She appeared anxious. She appeared nervous. She did not confront the father with her words. She was quiet and appeared withdrawn. Notwithstanding that she said she could hide her anxiety about the father from the children I doubt that she would be able to do so, given what I observed of her presentation in the witness box during the hearing.
The Father
The father presented himself at Court on the first day of the resumed hearing on 11 July 2011. He was dressed casually in reasonably smart clothes. On the 3rd day he attended in a tee shirt. He said he didn’t have any other shirts to wear. He was unshaved (which may have been deliberate) and looked quite untidy in his presentation. I draw no adverse inference as a result of those observations. I was, however, surprised by his presentation given that I accept he was attempting to impress the Court with a view to having his application for time with the children granted in the manner he sought.
In his oral evidence the father appeared to move between giving evidence in a remarkably honest manner to being deliberately evasive and, I am satisfied, dishonest. I will refer to the evidence which I found I could not accept as truthful as I consider the evidence during these reasons.
The father has an unfortunate habit of failing to answer straightforward and clearly uncomplicated questions. At times he appeared to have cognitive difficulty. There were a number of occasions when I asked him a question which he did not directly answer. He appeared to have a very poor memory, so much so that I had a concern as to how he would manage a university course, which is his stated ambition.
Ms N
Ms N appeared as an attractive and well presented young woman. She clearly endeavoured to support her partner, the father in these proceedings. The manner in which she gave her evidence gave me concern as to its veracity. In particular she claimed she was not frightened of the father when she called the 000 phone line on 11 March 2011. Having heard the tapes played in Court I am satisfied she presented as being very frightened of what was happening or potentially about to happen when she made the calls. I also do accept she was assaulted by the father, as alleged by her in the police reports in exhibit M18. She denied that was the case when she gave oral evidence.
As will be seen later in these reasons when I come to consider Ms N as a possible supervisor of the father’s time with the children, I do have reservations about the longevity of the relationship between the father and Ms N.
Ms D
Ms D is the mother of Mr Warrick, the father in these proceedings. She appeared to me to give her evidence in an honest and straightforward manner. She was asked some very personal questions about her use of alcohol over a lengthy period of years. She did not shrink from answering those questions.
Mr E
Mr E is the father of Mr Warrick. He had a propensity to be verbose. He sought to justify some of his actions in relation to his dealings with the mother during the lead up to this hearing. In particular he was questioned about the March 2008 incident when the father was hospitalised following a psychotic episode which was captured on the front page of the [Suburb M] Daily newspaper. In relation to that incident, he telephoned the mother to ask for the telephone number of Ms G without informing the mother of the information he had been provided with relevant to the father’s psychotic state and his hospitalisation. His stated reason for not conveying that information to the mother was that he needed to have those facts verified. I do not consider the explanations provided to be truthful in all respects and rather I conclude that his failure to inform the mother of the information he had received was due to his desire to protect his son and/or because he would feel uncomfortable speaking to the mother about those facts.
Mr F
I accept this witness gave his evidence honestly.
Ms G
Ms G was not required for cross-examination and consequently there is no challenge to her evidence.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The parties filed in Court on 30 August 2010 a document titled “Chronology”. That document specified agreed and disputed facts. It became an exhibit in the hearing and was marked as X3. The following are facts which are derived from that document and the other evidence in the case which I consider of considerable relevance.
The father was born in 1974 and is 36 years old. The Mother was born in 1975 and is 36 years old.
Both parties agree that they met some time in 1997 and commenced cohabiting in early 1998, following the father’s first incarceration. There is some disagreement between the parties as to how long they cohabited in the years between 1998 and 2003. The period of cohabitation was interrupted by the father’s second incarceration from November 2000 until February 2003.
The parties’ son, B, was born in 1999, and the parties’ daughter, C, was born in 2000.
Upon the completion of the father’s second incarceration, it is unclear as to whether the parties resumed cohabitation. The father states that the parties separated in May 2004 and the mother indicates that the relationship ended in 2003. For the purposes of this hearing the question is immaterial.
Over the course of 2003-2004, the mother claims that she was forced to change her phone number due to the harassing phone calls she received from the father. The father disputes this. I prefer the mother’s evidence in relation to that matter. The mother took out an interim AVO against the father in September 2003 and interim parenting orders were made in Suburb M Local Court for the children to live with the mother. The mother discontinued the AVO proceedings in November 2003. Further interim parenting Orders were made at that time for the children to spend time with the father on alternate weekends conditional on the father attending a psychiatrist.
In July 2004, the father filed a Contravention Application in relation to the previous orders. Those orders were dismissed and further interim orders were made for the father to have supervised time with the children. Final orders were made by consent in CC Local Court in December 2004. The orders provided for the father to spend time with the children each alternate weekend.
First Family Court Proceedings
The matter was brought before the Family Court in May 2005. The mother at that time commenced proceedings and the father filed a Contravention Application against the mother. Interim orders were made comprising the appointment of an Independent Children’s Lawyer, telephone communication between the father and the children, and orders that the children spend time every second weekend with the father. The father withdrew his Contravention Application.
The mother began a relationship with Mr Timson in October 2004 and they married in 2006. Mr Timson has a child, DD, from a previous relationship, who spends time with Mr Timson every second weekend.
From May 2005 through to September 2006, there was limited telephone contact between the children and the father. The parties disagree as to the reason this occurred. The mother claims that the father was not available at the agreed times and would phone at inconvenient times; the father claims that the mother deliberately prevented the contact. Again I prefer the mother’s version of fact on this issue.
Proceedings continued between the parties during this time. The Interim Orders were amended in June 2005, August 2005 and December 2005 in relation to telephone communication between the children and the father and the time that the children spent with the father.
The matter came before Justice Watts between May and September of 2006 and Final Orders were made 11 September 2006. The Orders are as follows:
1.The orders made by the Local Court, Family Matters on 16 December 2004 be discharged.
2.The children [B] born … 1999 (“B”) and [C] born … 2000 (“C”), together (“the children”) shall live with the mother.
3.The mother have sole parental responsibility in relation to the major long term decisions to be made about the care, welfare and development of [B] and [C] except for decisions about change of name and relocation, which decisions will not be made by the mother without the consent of the father. When exercising sole parental responsibility the mother will consult with the father in relation to the decision that she has to make and will take his opinion into account when making her decision, such consultations to take place in writing and through her solicitor.
4.Subject to order 5, until [B] turns 10, the children will spend time with the father as follows:
4.1.On the first Saturday and first Sunday in each four week period and on the third Saturday and third Sunday in each four week period from 9.30am until 5.00pm each day, such time spent to be suspended during school holidays;
4.2.From 9.30am on the Saturday after the last day at school until 9.30am on the following Saturday in each of the school holiday periods at the end of Term 1, Term 2 and Term 3;
4.3.For a period of two weeks to conclude at 5pm on the Saturday immediately prior to the commencement of the school year;
4.4.From noon to 6pm Christmas Day;
4.5.On each of the children’s birthdays as follows:-
4.5.1.If the birthday falls on a school day then from after school until 7pm; and
4.5.2.If the birthday falls on a weekend when the children are not with their father for four hours from 9am to 1pm;
4.6.For Father’s Day in each year if it falls on a weekend when the children are not spending time with their father from 9.30am to 5pm.
5.5.1 [Ms G] or her nominee supervise the first Saturday in each four week period during school term, with the cost of any such supervision to be met by the father and provide a written report to the Independent Children's Lawyer;
5.2 Subject to order 5.1 during the remaining time the children are with their father, pursuant to orders 4.1, 4.4, 4.5 and 4.6, the children be supervised by either [Ms D], [Mr E], [Ms G] or [Ms G’s] nominee;
5.3 In the event that [Mr E] is available to supervise the children overnight then the time the children spend with the father pursuant to order 4.1 can also include from 5pm Saturday to 9.30am Sunday, with the father to give the mother seven days notice that this will be what will happen;
5.4 The time the children spend with their father pursuant to orders 4.2 and 4.3 be supervised by [Mr E], [Ms G] or her nominee or from 9am to 5pm on any day or days by [Ms D].
6.From the time [B] turns 10, the children will spend time with the father as follows:
6.1. Each alternate weekend from after school on Friday until 5.00pm on Sunday by the father collecting the children from school at the commencement of the time period and delivering them to [Suburb K] McDonalds, where they will be collected by the mother or her nominee at the conclusion of the time period, such weekend periods to be suspended during school holidays;
6.2. For the first half of the school holidays at the end of Term 1, Term 2 and Term 3 from 9.30am on the first day of the school holiday period until 5.00pm on the middle Saturday of the school holiday period;
6.3. For a period of two weeks to conclude at 5pm on the Saturday immediately prior to the commencement of the school year;
6.4. From noon to 6pm Christmas Day;
6.5. On each of the children’s birthdays as follows:-
6.5.1. If the birthday falls on a school day then from after school until 7pm; and
6.5.2. If the birthday falls on a weekend when the children are not with their father for four hours from 9am to 1pm;
6.6. For Father’s Day in each year if it falls on a weekend when the children are not spending time with their father from 9.30am to 5pm.
7.The children will spend Mother’s Day with the mother. In the event that Mother’s Day falls on a weekend when the children would ordinarily be spending time with their father, the children will be returned to their mother at the changeover point at 9.30am on Mother’s Day.
8.Except as otherwise provided in these orders or otherwise agreed, for the purposes of changeover for time spent between the father and the children which is to be supervised by the paternal grandmother or the paternal grandfather, the children will be collected by the paternal grandmother or the paternal grandfather from the mother or her nominee at [Suburb K] McDonalds at the commencement of the time period and delivered back to the mother or her nominee at [Suburb K] McDonalds at the conclusion of the time period. If contact is to be supervised by [Ms G] or her nominee then the children shall be picked up from and delivered back to their ordinary residence.
9.Except as otherwise provided in these orders or otherwise agreed, for the purposes of changeover once the children turn 10, the father will collect the children from [Suburb K] McDonalds from the mother or her nominee at the commencement of the time period and deliver the children to the mother or her nominee at [Suburb K] McDonalds at the conclusion of the time period.
10.10.1 The Court notes that the paternal grandmother has given an undertaking to the Court in the following terms:
As a supervisor of time spent between the children [C] and [B] Warrick and their father, I undertake to the Court to:
1.Be present during all periods of time spent between the children and my son, [Mr Warrick] (“[Mr Warrick]”)
2.Not leave the children unattended at any time in [Mr Warrick’s] care
3.Not allow [Mr Warrick] to remove the children from my care
4.Not delegate my supervisory role to any other person
5.Be present at or facilitate all changeover
6.Advise the mother not less than 24 hours prior to a period in which the children are due to spend time with [Mr Warrick] of my unavailability to supervise contact
7.Notify the mother immediately in the event [Mr Warrick] removes the children from my care
8.Over the 12 months immediately following the making of the Family Court Orders, to notify the Independent Children's Lawyer in the event any incident occurs during that time which causes me concern about any potential risk to the children
9.Abstain from drinking alcohol during periods of contact supervision.
10.2The Court notes that the paternal grandfather has given an undertaking to the Court in the following terms:
As a supervisor of time spent between the children [C] and [B] Warrick and their father, I undertake to the Court to:
1.Be present during all periods of time spent between the children and my son, [Mr Warrick] (“[Mr Warrick]”)
2.Not leave the children unattended at any time in [Mr Warrick’s] care
3.Not allow [Mr Warrick] to remove the children from my care
4.Not delegate my supervisory role to any other person
5.Be present at or facilitate all changeover
6.Advise the mother not less than 24 hours prior to a period in which the children are due to spend time with [Mr Warrick] of my unavailability to supervise contact
7.Notify the mother immediately in the event [Mr Warrick] removes the children from my care
8.Over the 12 months immediately following the making of the Family Court Orders, to notify the Independent Children's Lawyer in the event any incident occurs during that time which causes me concern about any potential risk to the children.
11.In the event that it is alleged the paternal grandmother or the paternal grandfather fails to personally supervise time spent between the children and their father or it is alleged that either the paternal grandmother or the paternal grandfather has breached his or her undertaking to the Court, then the mother or the Independent Children's Lawyer shall have leave to relist the matter for consideration of whether or not such a failure or a breach has occurred and to apply for an order that supervision of the children’s time with their father will thereafter be conducted only by [Ms G] or her nominee and in accordance with the father’s financial capacity to meet the costs of such supervision.
12.That the continuation of time spent between the children and the father, supervised or otherwise, is conditional upon the father as soon as is practicable attending on [Dr AA] for ongoing therapy and treatment, as deemed necessary by [Dr AA].
13.Leave be granted for the Independent Children’s Lawyer to provide [Dr AA] with copies of the expert reports prepared by [Dr R] for the purposes of these proceedings and a copy of these Reasons for Judgment.
14.The order for independent representation of the children continue for a period of 12 months from the date of these orders.
15.The parties do all things and sign all documents to authorise [Ms G] to notify the Independent Children’s Lawyer in the event any incident occurs during supervised time spent between the father and the children which gives rise, in her view, to a potential risk to the children.
16.The father do all things and sign all documents to authorise [Dr AA] to provide such information as required by the Independent Children’s Lawyer, including but not limited to the father’s attendance at appointments, compliance with treatment and medication and for [Dr AA] to be permitted to advise the Independent Children’s Lawyer of any concerns which arise as a consequence of his treatment of the father which might give rise to a risk to the children.
17.In the event during the 12 months immediately following the making of these orders, [Dr AA] or [Ms G] raises any such concerns with the Independent Children’s Lawyer, she has leave to relist the matter before his Honour Justice Watts by arrangement through his Honour’s associate on 24 hours’ notice.
18.In the six months leading up to the commencement of unsupervised time spent between the father and the children, as provided in order 6 above, and as a further condition of unsupervised time spent between the father and the children, the parties shall do all things and sign all documents to ensure the children’s attendance at protective behaviour counselling through the [Suburb M] Women’s Resource Centre or such other counselling service as recommended by [Ms G] or her nominee. The parties will share the cost equally of the children attending protective behaviour counselling and will accept the recommendation made by [Ms G] or her nominee as to the need for the children to attend any further protective behaviour counselling from time to time.
19.Each of the parties shall keep the other advised of a mobile telephone number which each parent can ring the other upon in the case of emergencies associated with the children.
20.Each party be restrained from denigrating the other in the children’s hearing or at all.
21.Within seven (7) days the mother do all things necessary to authorise the schools the children attend, to forward all newsletters, reports and other material directly to the father.
22.It is noted that the father is at liberty to go and watch the children’s sporting activities on days when they are spending time with him.
23.The father is at liberty to attend Suburb EE Public School for special events that the children may participate in, such as but not limited to plays, fetes, swimming and athletic carnivals on the condition that the father not approach the mother at those times and shall not attend parent/teacher nights when the mother is in attendance.
24.The father may contact the school principal of the school at which the children attend from time to time or the class teachers of the children from time to time for the purposes of discussing with them the children’s educational progress.
25.Apart from the provisions in these orders, the father shall not attend the children’s schools.
26.The father be restrained during periods of time that the children are with him from involving the children in:-
26.1.Riding on a jet-ski;
26.2.Riding on any type of motorised bike;
26.3.Steering any motorised vehicle;
26.4.Involving the children in any extreme sport or any activity which involves the children in an unacceptable risk to their physical wellbeing;
27.That each party pay the sum of $2,269 to the Independent Children's Lawyer by way of costs.
28.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.
Events Following the first Proceedings
The parties agreed, in their oral evidence that the supervised time the children spent with the father between September 2006 and March 2008 generally passed without incident. The father spent time with the children once per month, supervised by Ms G. The children also spent week-long blocks at the paternal grandfather’s house on the north coast with the father, supervised by Ms G.
The mother’s child with Mr Timson, FF, was born in 2007.
Ms G moved to the far north coast of New South Wales in January 2008.
On 20 March 2008, the father suffered a psychotic episode induced by drugs and was taken by police to the psychiatric ward of Suburb M Hospital. He remained in Suburb M Hospital as an involuntary patient for three days.
The mother received a phone call from Mr E on 21 March 2008, requesting Ms G’s phone number. Ms G later rang the mother to inform her that the children’s visit to the father on 22 March was cancelled.
The following day, the [Suburb M] Daily carried a front page story about the father’s episode. The mother saw the front page late at night on the night of 21 March.
As a result of this episode, DOCS created a file to ensure that the children were protected. The mother was contacted by DOCS three times between 25 March and 18 April 2008, at which point DOCS informed the mother that they were satisfied the children were protected and they were closing their file on the matter.
The father appeared before the X Local Court on 6 August 2008 in relation to this incident. The mother claims that he was conditionally discharged under Part 3 of the Mental Health (Criminal Procedure) Act; the father claims that he was discharged upon conditions imposed by the X Local Court.
Following the episode, the mother suspended all contact between the father and the children until she could obtain information about the father’s mental health. It is her evidence that she sought such information from the father’s solicitors. It is also her evidence that she had some difficulty obtaining such information. Material related to the issue was provided to the mother on 9 July 2008.
In August 2008, while the contact was suspended, the parties organised for there to be telephone contact between the father and B for B’s birthday. There is some dispute as to the length of the telephone call. The mother claims that she facilitated contact, however the father disputes this.
The following day, 4 August 2008, the father and his partner Ms N entered the premises of the school the children attended. The mother’s solicitors had previously (on 1 August) informed the fathers’ solicitors that the father was not permitted to see the children at school on B’s birthday. According to the mother’s evidence, the children stated the father entered by way of the back fence and spoke to the children. The father also gave B a card. The mother’s evidence states that this visit upset the children, but the father’s evidence states that they were excited to see him. I accept that the mother would have been highly anxious once informed about the incident.
In September 2008, Ms Q (the maternal grandmother) and Mr E (the paternal grandfather) communicated by telephone to organise for the children to spend time with Mr E at his home. The purpose was to enable the children to meet their paternal great-grandmother. It was agreed that Ms Q would accompany the children and that the father would not be present at this meeting. On 25 September, the meeting took place as arranged.
In September 2008, the father filed a Contravention Application against the mother in the Federal Magistrates Court.
On 25 October Mr E phoned Ms Q regarding the Court proceedings. It is Ms Q’s evidence that she declined to answer any questions on that matter as it “wasn’t my call”.
The mother filed an Application for Final Orders and an Application in a Case in the Family Court on 28 October 2008. The father’s Contravention Application was moved the Family Court on 20 October 2008. Interim Orders were made on 26 November 2008 which provided the father was to spend time with the children every alternate weekend on Saturday and Sunday from 9.30 a.m. to 5.00 p.m., supervised by Ms G or her nominee. The interim orders also provided that a report be prepared by Dr R as Court expert.
On 27 November 2008, the father appeared in the X Local Court on drug possession and supply charges.
The father resumed spending time with the children on 6 December 2008.
On 18 December 2008, 28 December 2008, and 1 January 2009, the mother’s evidence states that she requested a drug test of the father and that he did not produce a drug test result; however, the mother received a test result in late January 2009. The father’s evidence is that he did not receive the 28 December and 1 January requests as he was overseas and did not have access to his email. The father’s evidence further states that he complied with the 18 December request, however, he did not produce the result immediately as it was sent to his doctor. A further request for a drug test on 26 January was complied with. The mother advised the father, on 27 January 2009, that she would not make the children available to the father without a negative drug test result.
Further requests for drug tests were made through the father’s solicitors, after the mother was advised that the father was having technical difficulties with his phone and email. A request made by the mother on 8 April was not complied with. The mother’s evidence is that the father’s solicitors advised the mother that the father would not provide a drug test unless he was to spend time with the children. The father’s evidence is that there was no supervisor available that weekend and he could not see the children without a supervisor. The mother’s evidence is that she stopped requesting drug screening tests after this date.
The father spent time overseas from 30 December 2008 to 6 January 2009, travelling to Country GG in order to see his child of another relationship.
In January 2009, the mother became aware that the father had established email contact with the children without her knowledge. It is the mother’s evidence that she discussed the emails with the children and they talked about closing down their email accounts. The mother closed the email accounts on 23 February.
The father travelled to Country HH from 18-28 February 2009 to work as a personal trainer for professional athletes.
On 13 March 2009, the father’s solicitors requested that the mother agree to allow Ms D to act as supervisor for the children’s time with their father. The mother did not agree to this.
On 19 April 2009, the father approached the mother and the children at Suburb II Mall. The mother’s evidence is that his approach took her by surprise and made her feel uncomfortable. The father’s evidence is that they met up by coincidence and that nothing untoward occurred during the short meeting.
In June 2009, B commenced a special diet to address his digestive system complaints. The mother provided material about the diet to Ms G and the father.
On 1 June 2009, it is the mother’s evidence that she saw a note on C’s Nintendo DSI, written in the father’s handwriting, which said “remember to call daddy”. The mother’s solicitors contacted the father on 5 June to request that he not set up new email account for the children. It is the mother’s evidence that the children spoke to Ms Q on 6 June about the father bringing up emails during his time with them. The father sought, through his solicitors, to establish email communication with the children on 10 June 2009.
An interim hearing was held on 19 June 2009 at the Family Court, in which Interim Orders are made. The Orders suspend the operation of Orders 4, 5 and 6 of the 11 September 2006 Orders, and ordered that the father spend time with the children on the first weekend of each month and 3 hours on the third weekend of each month, all time to be supervised by Ms G or her nominee. The orders also provided that the father undergo drug screening, for the father to keep the mother updated as to the progress of any criminal charges against him, and restraining the father from consuming illicit substances prior to time with the children.
Between July and August of 2009, the mother and father were in direct contact with each other via email.
From 18-25 July 2009, the children spent time with the father and Ms G in their school holidays. The mother found out from the children on 22 July that the father had taken them to the snow for that period. The mother was not informed of this trip before it took place. On 25 July, it is the mother’s evidence Ms G informed her that she was aware the mother did not know of the trip.
On 3 August 2009, the Father spent time with the children, under the supervision of Ms H, for B’s birthday. The mother agreed for the changeover to take place at the school. The father entered the children’s classrooms. It is the mother’s evidence that the father did this without permission. It is the father’s evidence that he did so at the request of the children and in the presence of a teacher and the supervisor.
The father spent time overseas from 7-18 August 2009, travelling to Country JJ to spend time with Ms N’s family. The Children spent time with the father on 6 September for 6 hours.
In September 2009, it is the mother’s evidence that she saw the father’s name on the Court Lists at both Suburb M Local Court and X Local Court. Her evidence states that the father did not inform her of these Court appearances.
In September 2009, it is the mother’s evidence that the father refused to disclose his arrangements for the September school holidays with the children. The mother’s evidence states that she refused to allow the children to spend time with the father.
In September 2009, it is the mother’s evidence that the children informed her that during the ski trip in July, the father took B on a ski run without supervision.
The mother’s solicitors wrote to Ms G on 6 October 2009 in relation to the father’s unsupervised time with B. On the same day Ms G wrote to the mother’s solicitors informing them that she has written reports of the time spent with the children by the father, which were available for a fee.
The father spent time overseas from 18 September 2009 to 9 October 2009, seeing his child of another relationship.
From 10-17 October 2009, the children spent time with the father, Ms N, and Ms G in KK Town. It is the mother’s evidence that the father and Ms N acted inappropriately at the changeover, sticking up their fingers and poking their tongues out. I note this was denied by each during their oral evidence. I do however accept the mother’s evidence on this issue.
On 12 October, it is the mother’s evidence that the father contacted the mother after B became unwell from eating a wheat product (on potato wedges), which was not permitted in the diet B was following. It is the father’s evidence that he contacted the mother after B complained of a sore stomach, and that B later said he felt better.
It is the mother’s evidence she became aware the father had been contacting C electronically in November 2009. The father refutes that he was.
The father travelled overseas to Country LL from 27 November to 8 December, spending time with his child of another relationship.
On 11 December 2009, the children spent two hours with the father for C’s birthday. There is disagreement as to the detail of the arrangement of time. The mother agrees the father requested to pick up the children from school, which was refused by the mother.
On 18 December 2009, there was a disagreement as to the children telephoning the father for his birthday. The father had previously requested of Ms Q that the children telephone him for his birthday. The phone contact did not happen. It is the mother’s evidence that on that day B was ill and was unable to talk to his father, and C was attending a Christmas party all day. In her oral evidence she also claimed that she was told “no pressure, no worries, no solicitors” and so did not feel obligated to ensure phone contact took place. The father sent a text at 6 p.m. requesting a phone call which the mother refused. It is the mother’s evidence that the father later sent an abusive text message. In my view it does no credit to the mother that the children did not speak to the father by phone on his birthday.
On 25 December 2009, the father spent 4 hours with the children. The children spent 9-16 January 2010 with the father, supervised by Ms G. The father gave the children mobile phones during that time. It is the mother’s evidence that she informed the father in January 2010 that she did not agree to the children having mobile phones. On 11 January, the father informed the mother, via Ms G, that he would allow the children to keep the mobile phones. On 13 January, the mother’s solicitors wrote to the father advising that the mother would not allow the children to keep the mobile phones. When the children returned to the mother’s care on 16 January, the mother confiscated the phones.
In January 2010, the father also created Facebook pages for the children. The mother’s letter of 13 January advised that the mother required the Facebook accounts to be closed.
The father travelled overseas to Country HH from 18 February through to 8 March 2010, working as a personal trainer for professional athletes. Having observed the father when he was questioned about this trip I do not accept this was some type of professional or work related holiday.
Ms G contacted the mother on 21 March 2010, requesting, on behalf of the father, that the children spend time with the father. On 23 March, the July school holidays were confirmed.
In April 2010, it is the mother’s evidence that the children reported to her the father was asking them to telephone him. They further reported that Ms G left the children unattended with the father. I do not accept that she did leave them unattended.
In April 2010, the father did not spend time with the children in the school holidays. It is the mother’s evidence that the children were more settled as a result. It is also the mother’s evidence that the father would not disclose his plans for the July holidays, and that the father requested the children to call him.
On 28 April 2010, the mother’s solicitors wrote to Ms G and to the father’s solicitors about the mother’s concerns. On 29 April, the father’s solicitors requested telephone and email contact to take place between the father and the children.
The father spent one night and two days with the children, over the period of 1-2 May 2010, supervised by Ms G. The mother provided a copy of B’s food plan to the father. It is the mother’s evidence that the children complained about the father on their return from the visit.
The father travelled to Country GG from 3 May to 25 May 2010, to spend time with his child of another relationship.
It is the mother’s evidence that Ms G contacted the mother on 6 May 2010 and requested that the mother return the confiscated mobile phones to the father.
On 28 June 2010, the father’s solicitors informed the mother’s solicitors that the father intended to take the children to the snow in the agreed July visit. The solicitors also informed the mother that the criminal charges against the father were dismissed.
It is the mother’s evidence that her solicitors wrote to Ms G on 30 June in relation to her supervising duties while on the snow trip.
C was invited to a birthday party which was to take place on 2 July during the time C was spending with the father. It is the mother’s evidence that C was upset when the father would not let her attend the party.
The children spent 3-10 July with the father on a snow holiday. During that time there was an incident in which B went on a ski run with the father and Ms G, while C was left alone with Ms N. It is the father’s evidence that the mother was telephoned beforehand and her consent was obtained before this occurred. It is the mother’s oral evidence that she felt ‘put on the spot’ and was uncomfortable about consenting.
On 15 July 2010, the mother found C’s Nintendo DS in her letterbox. It is the father’s evidence that Ms G informed Ms Q that he would leave it there. I accept that this episode held an underlying message for the mother from the father that he knew where she lived.
The father travelled to the Country MM with Ms N from 21 July to 2 August 2010.
In July 2010, Ms G organised with the mother for the father to spend time with the children on B’s birthday, supervised by Ms H. The children spent two hours with the father.
The father travelled to Country JJ from 16 august to 23 August 2010 to spend time with Ms N and her family.
It is the father’s evidence that the last time he took drugs was around the time he began to see Dr NN, which was on 25 August 2010. The father undertook a primary rehabilitation program at L Hospital from 27 September 2010 to 16 October 2010, a ‘step-down’ program at L Hospital from 26 October 2010 to 9 December 2010, and a ‘Relapse prevention’ course at L Hospital over the period of 27 October 2010 through to 2 March 2011. Since then, it is the father’s evidence that he regularly attends Narcotics Anonymous in various locations around northern Sydney, at some points attending twice daily, and also has a sponsor to whom he is accountable.
A family consultant conducted interviews with the children and the parents in December 2010, which resulted in a Family Report dated 14 December 2010.
It is the father’s evidence that he decided to stop work for 6 months in late 2010 in order to focus on his recovery from drug addiction. Since that time, he has received Centrelink benefits.
The father spent time in Continent OO from 12 January 2011 to 2 March 2011. It is his evidence that he went back-packing through various countries on that continent as a way of separating himself from holiday celebrations that involved alcohol, as he could not deal with its constant presence so soon after giving it up.
In March 2011, two separate incidents of domestic violence were reported to police by Ms N. On 3 March 2011, the father was charged with Assault occasioning actual bodily harm, domestic violence related. In a separate incident, the father was charged, on 11 March 2011, with using a carriage service to threaten serious harm and common assault. Both incidents related to Ms N. Following that incident, from 5 April to 17 May, the father and Ms N stayed with Ms D.
The father has not spent time with the children since the Family Consultant interviewed the parties in December 2010. It is the father’s evidence that he cannot afford to pay for the required supervision.
The Family Report
Exhibit X2 in the proceedings is a family report prepared by family consultant Ms S and dated 14 December 2010. The family consultant noted that the two children C and B live with their mother, her husband and their half brother, FF born in 2007. The children last saw their father in September 2010 on father’s day. They did see him as part of the preparation of the report.
The family consultant observed that the children appeared relaxed and comfortable in the presence of their mother whom they clearly love. She opined that the children may understand that their mother has some nervousness about coming into contact with the father. However, they appear to not understand the reason why and/or the background to that concern.
The children were able to identify the father as “Dad.” The family consultant considered that the attachment bond between the children and their father is at this stage comparatively weak. The children reported positive and enjoyable times with their father. There was no resistance observed in the children in relation to them seeing their father on the appointed day. During the observation with their father there were no obvious signs of fear or anxiety observed in either child.
The family consultant observed there were indications that B and C are yet to form a substantial relationship with Ms N. She was a familiar person to them. They did enjoy her company and her attention. They responded positively to her physical affection at greetings. They included her in their activities and conversation.
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.
Section 60CC Considerations
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
In this case both parents desire that the children have a good and meaningful relationship with each of them. The only inhibitor is the father’s mental health which is affected by drug use.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In this case each party acknowledges that there is potential for the children to be exposed to harm should they experience their father at a time when he is psychotic or not in control of his emotions, such as enraged buy some action or words of Ms N. It is for that reason that both agree the children’s time with the father needs to be supervised.
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
The children’s views as expressed to the Family Consultant are set out earlier in these reasons. As can be seen the Family Consultant says the views of C should not be given any real weight. The views of B however, are in a different category. He is aged 12 years and has expressed reservation about spending time with the father in an unsupervised circumstance. Further he has expressed a preference to spend time with his father supervised by Ms G. He does not wish to have communication with his father by electronic means. It is difficult to determine whether these are his real views or whether he is reflecting his mothers’ views.
(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)
I am satisfied the children have a good and close relationship with their mother. The Family Consultant has given evidence as to her assessment of the relationship between the children and the father. There appears to be some distance in the relationship, no doubt aided by considerable periods of time when they have not spent time with him.
It seems clear the children know who each of their grandparents are and no doubt have a closer relationship with their maternal grandmother than with the paternal grandparents and members of the father’s extended family. I accept, however, that the children know who they are and that they are trusting of them.
(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 accept that the mother has striven to keep the relationship between the children and their father alive. I also accept her assertion that she wishes the children to have a relationship with him. She has, in my opinion gone well beyond many parents in her tolerance of the circumstances the father has found himself in or created by his activities including the use of illicit drugs.
The father, for his part, now appears to be taking responsibility for his life and is making a valiant effort to reform his life. He is the first to acknowledge that this is a long path for him to follow and that there are many obstacles which he has to encounter and conquer. The Court must accept that the task he has taken on may have failings, nonetheless he should be congratulated on his taking up the challenge and should be supported by all in that challenge. To the extent that assisting the father is not contrary to the best interests of the children the Court should also play a part in that support.
(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
These children face the prospect of number of changes consequent upon the outcome of this proceeding. The outcome has the possibility of estranging them from their father, subjecting them to a stressed and worried mother, being exposed to behaviour in their father arising from improperly supervised time with him.
The children face the prospect of estrangement if their father can’t afford to fund professionally supervised time with them. Their mother may not be able to manage her anxiety as well as she might otherwise wish to do if the children were to have time with their father supervised by members of his family and/or Ms N.
If the supervision of their time with their father is not properly controlled, then there is the prospect that a supervisor may allow the children to be exposed to inappropriate behaviour from the father. That behaviour may include the children being exposed to conflict between the father and Ms N.
(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
This consideration plays a significant role in this determination. The father says that paid supervision of his time with the children would be in the order of $50,000 per year. He says he could not afford that at this time. He is not in receipt of an income from paid employment. The mother says the father could work if he chose to do so. He father says that he is still in recovery from his addiction to drugs and alcohol and that is his primary focus. He has realised his life will be governed by turmoil and trouble if he is unable to reform himself as he is attempting to do now.
(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
Both parties accept the father has an incapacity resulting from his former drug use and mental ill health. That incapacity is sought to be catered to by the provision of supervision.
There is no attack on the capacity of the mother as a principal carer for the children. The father is critical of the mother in that he accuses her of not permitting proper contact between the children and the paternal grandparents. I do not consider that criticism warranted. The mother has been faced with a degree of hostility from the paternal grandparents in that they hid from her the psychotic episode the father suffered in 2008. She does, in my view, have a proper foundation to have concerns about their genuine concern for the well-being of the children.
(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
B is now 12 years of age and C is 10. B is at an age when he could be expected to really have a need to spend time with his father. He does have the role model of the mother’s husband and is fortunate in that respect, however, it must be expected that as he goes through puberty he will question who he is and be looking for freedom which his mother and her husband may not allow. That could lead to longings within B for his father’s opinion and influence. All things considered there are a number of negative outcomes for both children if they are unable to spend time with their father and learn how he thinks and what his values are.
(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 consideration is not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
In my view no real criticism can be levelled at the mother for the way in which she has demonstrated her attitude towards the responsibilities of parenthood. Assuming no-one is capable of perfection in this pursuit, the mother in this case has in my view has been a very responsible parent. She has faced difficulties arising from the father’s drug and alcohol addiction which few mothers have to face. She has in my view been quite remarkable in persisting with a conviction that the children should spend time with the father.
(j)any family violence involving the child or a member of the child’s family
There was evidence before the Court in the form of records created by NSW Police relating to violence alleged to have been perpetrated upon Ms N by the father. In their oral evidence, both the father and Ms N denied any assault or domestic violence occurred as alleged by the police. The father was charged with assault upon Ms N. The matter was re-opened at the request of the father on 19 October 2011. He presented evidence to establish that the charges against him had been dismissed. In reality what happened was that Ms N refused to provide any evidence to support the charges.
I find that both the father and Ms N were deliberately dishonest in their denials of the violence exhibited by the father towards Ms N in March 2011. I am satisfied that the father was violent to Ms N as she had alleged to the police at the time of requesting their assistance.
(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
There is no such order.
(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 would in this case be preferable to make an order which finalises the Court proceedings for these children and for the mother. These proceedings have cost the mother a sum of about $185,000. That is an extraordinary amount of money in the circumstances of this family.
(m)any other fact or circumstance that the Court thinks is relevant
The children have not been told why they need to have supervised time with their father. Their reaction to the information is unpredictable. Responses from disbelief to abhorrence are all possible. The Family Consultant has given some advice as to how the children and the mother can be assisted with the imparting and receiving of this information. There are clearly advantages and disadvantages as to the timing of the sharing of that information with the children. I do not consider it is appropriate to be directing the mother in a particular way in relation to that issue.
Section 60CC(4) & (4A)
I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the evidence establishes that the father has failed to fulfil his responsibilities as a parent in a number of ways over the years as a result of substance and alcohol use.
Balancing of all considerations under Section 60CC and the defined issues
Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.
Section 61DA
This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence, it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case each of the parties seeks the continuation of order 3 made on 11 September 2006 following a final hearing before Justice Watts. That order is as follows:
The mother have sole parental responsibility in relation to the major long term decisions to be made about the care, welfare and development of [B] and [C] except for decisions about change of name and relocation, which decisions will not be made by the mother without the consent of the father. When exercising sole parental responsibility the mother will consult with the father in relation to the decision that she has to make and will take his opinion into account when making her decision, such consultations to take place in writing and through her solicitor.
In my view the facts of this case dictate that order should not be displaced by another.
Section 65DAA
This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
There is no order to which this section can apply. The parties seek the continuation of a sole parental responsibility order for very good reason which does not need to be restated here.
Both parties seek that the children’s time with the father be supervised, albeit in different forms. There is a difference between them about the extent of the time the children should spend with the father and I will deal with that matter shortly.
Conclusion and Orders to be made
The stated issues which need to be determined having regard to the matters determined above are as follows:
a)Should there be paid supervisors or the supervision be provided by the fathers family and his partner?
b)The duration of the time the children should spend with the father; and
c)Should there be ancillary orders such as toxicology testing?
The nature of the risk to the children from unsupervised time with father must be the touchstone for the extent of control by the Court of that time. Clearly the father still has the capacity to exhibit frightening behaviour as I am satisfied he did on 11 March 2011 when Ms N rang the triple 0 line and sought assistance. I am satisfied she was terrified of the father and what he might do to her on that occasion. The question is “What is the probability of him exhibiting frightening behaviour to the children if an order is made permitting supervised visits for them with him?”
I consider, on the balance of probabilities, it is unlikely the father would behave in a frightening manner in the presence of the children if one of his parents were supervising his time. He would understand that the display of frightening behaviour to the children would probably lead to his losing his time with the children for a lengthy period of time, possibly until they are much older.
Another area of possible risk to the children would arise if the father was to relapse into the use of drugs or alcohol. In such circumstances, his behaviour would be unpredictable even to himself. The drug testing proposed by the father would assist in monitoring that risk.
There is another matter which emerges from the evidence which poses as a possible risk to the children. That is exposure to open conflict, arguing, fighting, or whatever term the father wishes to give it, between himself and Ms N. Ms D told the Court that the father and Ms N “fight a lot” in her evidence. The knowledge of that behaviour appears to have principally come from her observation of them whilst they stayed with her following the incidents of March 2011. It is not an observation made about long past behaviour, rather it is very recent. I propose to order that the father and his supervisors ensure that the children are not exposed to arguing between the father and Ms N.
In considering the possibility that members of the father’s family might supervise his time with the children, I need to consider the suitability of Ms D the paternal grandmother. In the orders made by Justice Watts on 11 September 2006 he made the following order in relation to Ms D.
10. 10.1 The Court notes that the paternal grandmother has given an undertaking to the Court in the following terms:
As a supervisor of time spent between the children [C] and [B] and their father, I undertake to the Court to:
1.Be present during all periods of time spent between the children and my son, [Mr Warrick] (“[Mr Warrick]”)
2.Not leave the children unattended at any time in [Mr Warrick’s] care
3. Not allow [Mr Warrick] to remove the children from my care
4. Not delegate my supervisory role to any other person
5. Be present at or facilitate all changeover
6.Advise the mother not less than 24 hours prior to a period in which the children are due to spend time with [Mr Warrick] of my unavailability to supervise contact
7.Notify the mother immediately in the event [Mr Warrick] removes the children from my care
8.Over the 12 months immediately following the making of the Family Court Orders, to notify the Independent Children's Lawyer in the event any incident occurs during that time which causes me concern about any potential risk to the children
9.Abstain from drinking alcohol during periods of contact supervision.
In her oral evidence, Ms D acknowledged that in 2004 she had allowed the father to take the children to a movie theatre unaccompanied by her. Her explanation was that she didn’t understand that was contrary to the Court order. There was another occasion when she had left the children at the beach with the father. Her explanation was that she did not understand the orders of the Court at the time. There is no complaint in relation to any supervision by Ms D post the 2006 orders where she was required to sign an undertaking to the Court which specifically set out her obligations as a supervisor.
I need to consider what has been said by the family consultant namely:
If the supervisor or other persons in the children’s presence was to be critical of the mother or undermine the mother’s relationship with the children the family consultant said this could increase the risks to [B] and [C] of significant long term emotional problems. It is also likely to cause the children some distress and make them less receptive to seeing their father.
I also need to take into account her evidence where:
She considered that it was highly probable that if the father was to have significantly increased involvement with the children with significantly changed supervision arrangements the mother’s anxiety and stress levels would increase and in all likelihood would be communicated to the children and in turn make them anxious. The family consultant considered that any deliberations about the children spending time with their father must take into account consideration of the mother’s ability to cope and the impact upon her person and her parenting capacity.
One of the matters to be considered is whether the Court should make any order to regulate when the children are told about the reason they need to have their time with the father supervised. I consider this is a matter the mother can determine. The Family Consultant has given evidence about the circumstances in which the children should be told and the other resources the mother should consider using to assist her with the task. I propose to leave that matter within the discretion of the mother. I accept that she will provide the information in a sensitive and appropriate manner when she considers the time is right.
I consider the only workable supervision in this matter is for the father’s family to be the supervisors. To require the father to continue with paid supervision will mean that the children will only spend infrequent periods of time with the father if they spend any time with him. Alternately, in order to spend time with the children the father may resort to drug selling and using. Both those eventualities would be contrary to the best interests of the children.
I accept that the mother will, at least initially, be anxious about that supervision. However, she does concede that between 2006 and 2008 it did proceed in this manner without incident. If it proceeds in the same fashion into the future then it is to be hoped that her anxiety may lessen with time.
Clearly the father and his supervisors are on notice that should the children’s time not be supervised properly then the Court will be left with few alternatives.
Each party has a different regime of time which they seek the Court implement. The mother’s is straightforward in providing for the children to spend the first weekend of each calendar month with the father. Other special occasions are provided for. There is provision for school holiday time although that is limited. Other special occasions are provided for.
The father seeks a gradual introduction period building up to alternate weekends. More extensive school holiday time is sought as well as special occasions.
In my view, the best interests of the children dictate a conservative build up of time with the father. The Court has to be aware that the orders may be suddenly brought to a halt should the father suffer a relapse in his drug use or mental health. In such circumstances the children would likely experience a sudden cessation of their time with the father; if that were to occur in a situation where they were spending each alternate weekend with him it could be anticipated the impact upon them might be more severe than if the mother’s proposal was followed.
As stated earlier, I also consider an introductory period may be of assistance to the children and the mother.
The father seeks an order that he subject himself to hair drug toxicology screening. I consider that could assist in allaying the mother’s fears about his continued use of illicit drugs. I consider the father should provide those test results to the mother at six-monthly intervals until two years have expired from the date of the orders.
Clearly the orders for supervision need to have a sunset clause attached to them. I consider that as each child attains the age of 15 years the need for strict supervision of the father’s time with them should be dispensed with. At the same time, each child of 15 years or more should be able to determine when and how he/she spends time with the father. I propose to make orders accordingly.
In considering the frequency of the time the children have with their father I prefer the proposal of the mother. I consider that after a period of twelve moths the parties may extend that time, however, I would repose in the mother the final say on any such extension.
I therefore propose to make the orders in relation to parenting as set forth above.
I certify that the preceding two hundred and eighty-seven (287) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 24 November 2011
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Duty of Care
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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