Trembath and Colbert
[2014] FCCA 2261
•3 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TREMBATH & COLBERT | [2014] FCCA 2261 |
| Catchwords: FAMILY LAW – Long history of litigation – father psychologically troubled – father lacks insight – son’s view given significant weight – Independent Children’s Lawyer supports family consultant’s recommendations. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Caravaggio & Caravaggio [2011] FamCA 254 Collu & Rinaldo [2010] FamCAFC 53 McCall & Clark (2009) FLC 93-405 Re: F Litigants in Person Guidelines (2001) FLC 93-072 |
| Applicant: | MR TREMBATH |
| Respondent: | MS COLBERT |
| File Number: | MLC 12731 of 2007 |
| Judgment of: | Judge Curtain |
| Hearing dates: | 26 June 2013 27 June 2013 14 February 2014 6 August 2014 7 August 2014; and |
| Date of Last Submission: | 8 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 3 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not relevant |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | Not relevant |
| Counsel for the Independent Children's Lawyer: | Ms Mandelert |
| Solicitors for the Independent Children's Lawyer: | Lampe Family Lawyers |
ORDERS
THE COURT ORDERS BY CONSENT THAT:
The Contravention Application of the father filed 28 May 2014 be dismissed.
THE COURT ORDERS THAT:
The 3 Subpoena Notices of Objection filed by the father on 25 June 2014 be struck out.
The father be granted leave to make an oral application for the following orders:
“The child, X born (omitted) 2002 (“X”) spend time with the father as follows:
(a)each alternate weekend from the conclusion of school Friday to the commencement of school Tuesday during school terms;
(b)all of September/October 2014 school term holidays and one half thereafter of all school term holidays;
(c)the first two thirds of the long summer vacation for the next two (2) years and thereafter one half of the long summer vacation; and
(d)on Father’s Day from 6.00pm Saturday evening before to school Monday and on X’s birthday at times agreed.”
All prior parenting orders be discharged.
The child, X born (omitted) 2002 (“X”) live with the mother.
The mother have sole parental responsibility for X.
X spend time with the father as follows:
(a)during school terms each alternate Saturday or Sunday as initially nominated by X and thereafter each such weekend day, from 1.00pm to 4.00pm or such other days and times as agreed between the parents and X in writing;
(b)on Father’s Day and X’s birthday at times agreed between the parents and X; and
(c)at such other days and times including holidays and special days as agreed between the parents and X.
X communicate with his father at such times and with such frequency as agreed between the parents and X.
For the purpose of order (7) above X’s time with the father shall be supervised by an adult agreed to by the parents until such time as the father produces three (3) consecutive supervised drug screens clear of any illegal drugs at two (2) monthly intervals over a six (6) month period.
The parents agree on changeover arrangements, and in default of agreement, the father and his supervisor (when relevant) collect X from the mother’s home at the start and the mother collect X at the conclusion of all time with at a place agreed between the parents, and failing agreement, a mid-point between their respective homes and should the father be more than 45 minutes late to collect him his time with X shall not occur on those occasions.
The mother and the father keep each other advised of their current address, mobile telephone number and email address, and any changes thereto.
Each parent shall promptly advise the other of any serious accident or illness affecting X while in their respective care.
Each parent be at liberty to attend X’s basketball games (with a copy of the timetable to be supplied by the mother), other extra curricular activities, school parent/teacher nights and school events.
The father shall not transport X on a motorcycle without first obtaining the mother’s consent.
The father shall continue to attend his treating psychologist and follow that person’s reasonable directions.
The father be and is hereby restrained from:
(a)possessing or using marijuana on any other illicit drug; and
(b)drinking alcohol to excess twenty four (24) hours before or during any time with X.
The father undertake drug counselling at his expense by an expert nominated by the Independent Children’s Lawyer (in discussion with the father) and continue such counselling until advised that it is no longer required.
The order of Judge Curtain dated 26 March 2014 appointing the Independent Children’s Lawyer be discharged.
The parties’ applications, oral and written be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Trembath & Colbert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 12731 of 2007
| MR TREMBATH |
Applicant
And
| MS COLBERT |
Respondent
REASONS FOR JUDGMENT
This court often sees unhappy circumstances surrounding the parents that come before it. This is a particularly sad case as it appears to be a very unhappy example of how a young child (the father) who is a victim of violence over a lengthy period ultimately turns into a dysfunctional adult.
The applicant Mr Trembath aged 37 years, was initially seeking week about care of his son from a relationship with the mother, Ms Colbert, aged 53 years. The parents lived together for a very short period, from mid-2001 to around September, 2002 and their son, X was born on (omitted) 2002 (“X”).
This trial was adjourned part heard to allow the father to obtain a psychological profile to better inform the court of his psychological functioning. Such a report was prepared by his treating psychologist, Dr M and is dated 31 May 2014. It says at page 2:
“…Mr Trembath grew up on a farm in rural Victoria. One of six children (3 brothers and 2 sisters), he clearly had a difficult time as a child. He described his father as “strange and antisocial… a violent alcoholic” who would drink alone and then become violent. Mr Trembath described multiple episodes of violence against him by his father, including regular beatings, being picked up by his ears, and being thrown against walls. He reported that his mother was herself fearful and did not protect him…”
The author notes at page 3 that Mr Trembath regularly drinks alcohol and also smokes marijuana regularly. He says at page 5, “…Mr Trembath has features of depression, anxiety, posttraumatic stress, and even schizophrenia, he does not currently meet diagnostic criteria for a psychiatric disorder…Importantly, however these current and/or fluctuating psychiatric symptoms are superimposed on a complex and significant personality disturbance…”
And at page 4:
[the father] “…finds interactions with Ms Colbert, and the difficulties in seeing his son, highly stressful and this stress exacerbates his psychological ill health. In my opinion, this in turn exacerbates the unhelpful feature of his personality style…”
And at page 7 the author says:
“…He does, however, have a personality style that can come across as somewhat unusual. His personality influences the way he communicates with other people, with a tendency towards circumstantial and tangential speech…”
He goes on to say:
“As a result of this personality style, he is sometimes unpredictable and hard to reason with. He can be impulsive and some of his decisions – while seeming to him to be entirely rational and of the best intentions – do not always seem sensible to others. Predicting future behaviour is always very difficult and the best guide is usually past behaviour…”
Background
The applicant father lives at (omitted), a rural village, approximately a one hour drive from Melbourne. The mother, Ms Colbert lives in (omitted) and has been the primary carer of their son, X since his birth.
Sadly, litigation under the Family Law Act 1975 (“the Act”) between the parents has occurred far too often with it first occurring over 8 years ago. In March 2006, the father caused an application to be filed in this court seeking that the X should live with the mother and the father sought what was then called “contact”, graduated from an initial period of 4 hours every Friday. Final orders were made on 29 January 2007 which provided, inter alia, by consent that X spend time with the father from 10.00am to 1.00pm each Friday save that every fourth week it shall be on a Thursday, subject to the father providing a drug screen that indicated there was no illicit substances in his system and should he not provide that drug screen or provide one that showed a presence of illicit substances, then that spend time period would be suspended until such time as the father provided a clear drug screen.
On 23 November 2007 the father filed a further Initiating Application which sought final orders for X to spend time with the father each alternate weekend from after school on Friday to the commencement of school on Monday, half school holidays and times on Christmas Day, birthdays and Father’s Day.
On 2 October 2008 the parents entered into what was then described as Final orders providing amongst other things, that X spend time with the father each alternate weekend from 5.00pm Friday until 5.30pm Sunday, one half of term holidays and 9.00am to 6.30pm on Father’s Day.
It also provided the following:
“14. The father undertake supervised urine drug screens on no more than three occasions in the next six months, such to be random and undertaken within 96 hours of such a request in writing...”
It further provided in order 8:
“In the event that the mother does not receive the drug screen test results referred to in paragraph 14 of these orders, or such results indicate the presence of illicit substances or prescription medication not prescribed, then time shall be suspended until compliance with paragraph 14 of these orders has been satisfied.”
On 10 August 2012 the father filed a Contravention Application which had a return date of 27 August 2012. On that day there was no appearance by any party and that Contravention Application was dismissed.
On 17 September 2012 the father filed a further Contravention Application which came before Federal Magistrate McGuire (as he then was), on 18 October 2012 when his Honour made the following orders:
“THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1. The contravention application filed 17 September 2012 be dismissed.
2. All previous Orders in respect of the child X born (omitted) 2003 (“the child”) be discharged.
3. The child live with the mother.
4. The child spend time with the father as follows:
(a) each second weekend from Friday after school until the commencement of school Monday, and commencement of school Tuesday if a public holiday or pupil free day.
(b) for one half of every Victorian gazetted school holidays;
(c) for one half of the school summer holidays on a week about basis form the first Friday at 5.00 pm in 2011 and each alternating year thereafter and from the second Friday at 5.00 pm in 2013 and each alternating year thereafter;
(d) in any event the child spend time with the father at Christmas in 2012 from 5.00 pm Christmas Eve until 3.00 pm Christmas Day and each alternating year thereafter;
(e) all other times as agreed between the parties in writing.
5. Each party keep the other advised of their current residential address and telephone numbers at all times and should the child be spending substantial time with either parent away from this address then they are to advise the other parent accordingly.
6. The father be restrained from carrying the child on a motor bike on public roads.
7. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child attend upon a family consultant nominated by the Regional CoOrdinator, Child Dispute Services in the Melbourne Registry on a date and time or times to be advised for the purposes of the preparation of a family report, such report to be released by 15 May 2013, and:
(a) The family report to deal with the following matters:
·any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
·the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
·any other matters that the family consultant considers important to the welfare or best interests of the said child.
(b) The parties send copies of all of their court documents to the family report writer within seven days of being requested to do so by the family report writer.
(c) The nominated family consultant is permitted to inspect all documents brought to Court under subpoena issued in this matter and previously released for inspection by at least one party.
8. The matter otherwise be listed for final hearing on 26 June 2013 at 10.00 am at Melbourne (with an estimated hearing time if two days).
9. Each party file and serve all affidavits upon which they seek to rely not later than 4.00 pm 21 days prior to the final hearing and the parties shall not file further affidavits after that time without first obtaining leave from Federal Magistrate McGuire to so do.
10. Each party file and serve a case summary document in an appropriate form not later than seven days prior to the final hearing.
11. The applicant pay the setting down fee not later than seven days prior to the final hearing.
AND THE COURT NOTES THAT:
A. Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.”
On the 26 June 2013 his Honour became “jammed” with another trial and this matter was transferred to me. Both parents appeared in person and the matter did not finish on day 2 and was therefore adjourned part-heard before me on 14 February 2014. In the meantime it was expected that the parents would undertake mediation with Relationships Australia in an effort to resolve their differences and not continue with the trial. This did not occur.
On the return date the father sought an adjournment and as I was concerned about the father’s comments and behaviour in court, I again adjourned that matter part-heard to enable him to obtain a psychologist’s report.
On 26 March 2014 the matter came before me in my Duty List as the mother had filed an abridged Application in a Case seeking the following orders:
“1. In the best interests of the child under s. 60CC (2) (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed, abuse neglect or family violence and in regard to the views expressed by the child, [sic]
2. That Mr. Trembath have no further contact with X or only in the context of supervised contact at a contact centre until Mr. Trembath:
A) has a psychological assessment;
B) and be required to undergo treatment by a registered psychologist or psychiatrist at least once per calendar and the psychologist/ psychiatrist be required to confirm the attendance of Mr. Trembath in writing and shall send confirmation to Ms. Colbert no later than 5 days following a schedule visit.
C) Completes a men’s anger management/family violence course and;
D) Completes a parenting course.
3. That a new Family Report be requested by the court if necessary to verify and understand X’s wishes and his experience of the family violence free from intimidation, coercive and threatening behavior [sic].
4. Maintain a residence in Melbourne within a reasonable distance of the child’s school.
5. Mr. Trembath to facilitate all acts necessary to fulfill X’s [sic] sport, education and extra curricular activities which occur during the time spent with X.
6. Mr. Trembath be prohibited from making derogatory remarks about X’s mother to X or in the presence of X or to persons known to X.
7. Mr. Trembath be prohibited from discussing any matters or cost relating to the court proceedings with X.
8. Mr Trembath have tests for the use of illicit drugs upon the request of the [sic] Ms. Colbert.
A) the above tests shall not be carried out on more than 3 occasions per year.
B) Mr. Trembath shall do all things necessary to complete the test within 5 days upon receiving a request for testing in writing from Ms. Colbert [sic]
C) The testing shall be completed by a court approved substance testing agency.
D) Mr. Trembath pay for the cost of the testing [sic]
E) The result to be sent to the Court, Mr. Colbert and Mr. Trembath.”
She also filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence which detailed at page 3 that Mr. Trembath, “…ASSAULTED X BY STABBING HIM WITH A FISHING ROD THAT WAS TO HAND WHEN HE LOST HIS TEMPER WHEN X HAD NOT DONE AS REQUESTED. VERBAL ABUSE OF X & INTIMIDATION.” She also alleged that Mr. Trembath has issues with his temper and threatens the child on an ongoing basis.
In her somewhat lengthy affidavit filed 19 March 2014 the mother made some very serious allegations the most significant of which are as follows:
“6. X has stated to me that on a number of occasions Mr. Trembath has threatened to commit suicide if X did not spend time or more time with him. At other times he has told X that he will never see him again if he doesn’t get shared care. At other times, and more often, he attempts to ‘guilt trip’ X into being responsible for his ‘happiness’ or general good mental health. X categorically states that his father is not always happy and gentle in his presence as Mr. Trembath stated last year to the court when under oath.”
and…
“9. The court was able to observe first hand the disorientated and self serving thinking that Mr. Trembath displayed at the court on February 14, 2014 during the last hearing on this matter. It culminated with Mr. Trembath once again threatening suicide if he doesn’t get what he wants. Despite the court bending over backwards to accommodate his lack of understanding of what night be good for X and explain to him how he might achieve the ends he seeks. The court has, as I and many other people have, demonstrated a great deal of compassion for him and his situation. Unfortuntely X is suffering from Mr. Trembaths [sic] inability to recognise his own mental health challenges and take responsibility for ensuring his own good mental health…”
“THE INCIDENT
13. On Saturday March the 3rd Mr. Trembath picked up X at 9.30 am from (omitted). His appearance was unkempt and ‘wild’ looking as is consistent with how he looks when he has been stress [sic] out with had [sic]‘mental health’ issues/episodes in the past. X went with his father.
14. Mr. Trembath ensured X’s [sic] was in time for his basketball match. Before commencing the game X told his Team Manager, Mr L, that his father had taken X to a gun shop. Herein attached and marked as ‘ANNEXURE 1’ is a true copy of AFFIDAVIT MR L dated 19/3/2014.paragraphs [sic] 9-11.
15. An incident began when before the end of the game X left the court and walked out indicating to me that he wish me to follow him. Outside he told me that he was feeling really sick, and did not want to go away camping with his father. The situation escalated when Mr. Trembath came out from the court and displayed bullying behavior [sic] to X. Which other parents witnessed.
16. X was distressed and wanted me to talk to his father. Eventually, with X still distressed, Mr. Trembath suggested that X may wish to speak privately to me and so X came and sat in the car with me. I told him that he would need to go with his father but he should let his father know that he was not happy with the arrangement. X said that his father had said he would not bring him home till Monday because the basketball had taken away his time. (Which would have been yet another contravention of the current court orders. Prior ones are listed below).
17. X then told me that after picking X up earlier that morning Mr. Trembath had insisted that X come gun shopping with him. This upset X as Mr. Trembath has previously used threats of gun violence against me in the context of having his gun hidden in the camper trailer. (Even though at that time Mr. Trembath as a condition of his gun license was only allowed to use the gun when at the farm, for farming purposes.) [sic] Going to the gun shop I believe made X fearful particularly as his father was already angry with him for not wanting to go camping.
18. I told Mr. Trembath that I was cancelling the contact on this occasion as I did not think X was safe with him and stated I would be contacting Judge Curtain/the Court as soon as possible. I made this judgment taking into account X’s reaction to the inappropriate visit to the gun shop, whilst keeping in mind Mr. Trembath’s presentation and stress on the day and finally taking into consideration his demeanor [sic] and self harm threats in the court on February 14th 2014.
X is terrified by his father’s response to a cancellation
19. Mr. Trembath was about 10-12m from my car and yelling ran toward the car. I shut and locked the door. Mr. Trembath got to the car and tried to open my door when he found it was locked he kicked and hit the car, tried to break the side mirror and pulled out the windscreen wiper…”
The parents again appeared in person and the father strongly denied the allegations but I took the view that in all the circumstances pending continuation of the trial, that I should make orders that would be conservative and ensure that X was never placed at risk.
Therefore I made orders for supervised time with X, the appointment of an Independent Children’s Lawyer, and a more detailed report from the father’s then treating expert Dr M to provide the court with a psychological assessment and prognosis in relation to the father.
The part-heard trial then continued for three days from 6 August 2014 inclusive and the court was greatly assisted by Ms Mandelert of Counsel who appeared on behalf of the Independent Children’s Lawyer. The parents continued to appear in person and I assisted them the best I could pursuant to the guidelines laid down in Re: F Litigants in Person Guidelines (2001) FLC 93-1072.
The evidence
The parties relied on the following documents:
A. Applicant father’s material:
a)Application – Contravention filed 28 May 2014;
b)Affidavit of Mr Trembath affirmed and filed 26 June 2013;
c)Affidavit of Mr Trembath affirmed and filed 14 May 2014;
d)Affidavit in support of contravention application of Mr Trembath sworn and filed 28 May 2014;
e)Affidavit of Ms A sworn/affirmed 10 October 2012 and filed 12 October 2012;
f)Affidavit of Mr J sworn/affirmed 12 October 2012;
g)Statutory Declaration of Mr J, dated 24 June 2013 and filed 26 June 2013;
h)Affidavit of Ms L sworn/affirmed 23 July 2014 and filed 30 July 2014;
i)Affidavit of Ms K sworn and filed 30 July 2014;
j)Affidavit of Mr L affirmed 15 July 2014 and filed 30 July 2014;
k)Tendered Report of Dr M, dated 5 June 2014 assessing the father;
l)Notice of Objection – subpoena ((omitted), Principal, (omitted) Primary School) filed 25 June 2014 (struck out);
m)Notice of Objection – subpoena (Department of Human Services) filed 25 June 2014 (struck out); and
n)Notice of Objection – subpoena (Victoria Police) filed 25 June 2014 (struck out).
B. Respondent mother’s material:
a)Application in a case filed 19 March 2014;
b)Case summary filed 10 June 2013;
c)Affidavit of Ms Colbert affirmed 15 October 2012 and filed 17 October 2012;
d)Affidavit of Ms Colbert affirmed and filed 19 March 2014; and
e)Notice of Child Abuse, Family Violence, or Risk of Family Violence filed 26 March 2014.
C. Independent Children’s Lawyer’s material:
a)Outline of Case Document filed 5 August 2014;
b)Family Report prepared by Family Consultant Dr L, dated 15 April 2013; and
c)Updated Family Report prepared by Family Consultant Dr L, dated 10 June 2014.
The Family Reports
There are two Family Reports in this matter, both prepared by Dr L and are dated 15 April 2013, and 10 June 2014.
What is striking about them is the different presentation of X in each of the reports.
He was interviewed for the first report when he was then aged 10 years and 4 months. The author notes he presented as a mature, friendly and cooperative child. At page 20 paragraph 36, she further notes:
“X spoke positively about spending time with his father doing various activities together.”
On page 22 she says the following:
“42. When asked whether he had any thoughts or feelings he wanted to share with the writer about his future living arrangements, X said, “I don’t know. I want to live with Mum because… Dad’s home is only starting off, Mum’s is more homey.” When asked about the idea of a week-about arrangement, X said he thought that would be “a little weird.” He made a reference to the current arrangement (i.e., the unequal time between parents) being “not really fair” to his father and appeared to feel some guilt about this.”
At paragraph 44 on the same page she says:
“44. X’s presentation and behaviour did not differ with each parent. He appeared relaxed in their company, sharing warm, familiar and reciprocal interactions with both. Both parents were observed to engage X in conversation easily and to watch him fondly. Mr Trembath did not display the frustration he had expressed only moments before and was observed to engage playfully with X. There appeared to be a genuine rapport between them.”
Under the heading of “EVALUATION” on page 23 of the first report, the author says the following:
| “46. X presented as a confident and thoughtful child who has well established and generally positive relationships with both parents. He was aware of the discord in the parental relationship and indicated that he was sometimes put in the awkward position of hearing his father speak negatively about his mother to him and witnessing verbal disputes about arrangements, initiated by his father. X’s reflections suggest that he feels better understood by his mother and that she is the person whom he seeks out for emotional support. His preference to live primarily with his mother appeared to be related to the greater sense of stability in his mother’s home and possibly, in his mother. |
| 47. In summary, Ms Colbert presented as a considerate, thoughtful and child-focused woman. She was insightful and reflective about X’s well being and the factors that impact upon him. Her actions in January 2012 to not allow Mr Trembath to spend time with X until a new arrangement was negotiated appeared somewhat rigid and her expectations seemed somewhat unrealistic given Mr Trembath’s history of difficulty negotiating. It is the writer’s view that suspending time was likely an indicator of Ms Colbert’s desperation in trying to reach a reasonable agreement with Mr Trembath, however, a child’s time with their father is an inappropriate tool for leverage in such disputes. Despite this, X’s relationship with his father appears to be robust and to have withstood the lengthy disruption in time and communication without significant detriment. Furthermore, X experiences his mother as being fully supportive of him maintaining a meaningful relationship with his father. |
| 48. In contrast, Mr Trembath presented as a man who has considerable difficulty with perspective taking and insight-oriented reflection of his own behaviour and the impact of the same on others. Mr Trembath’s responses were egocentric and he displayed little sense of agency or responsibility, presenting himself as a passive victim in all regards. He did not acknowledge his own role in proceedings or take responsibility for his own decision making. Mr Trembath appears to underestimate the importance of X’s relationship with his mother; X’s reports corroborated his mother’s report that Mr Trembath does not refrain from denigration of her to X, which was consistent with his derisive remarks about Ms Colbert at interview. Mr Trembath made self-serving reports that appear to have no basis in fact (e.g., reading on the train with X) and threatened the writer that he would stop contact with X if his proposal was unsuccessful. This impressed as entirely lacking in child-focus. Mr Trembath’s presentation at interview was highly consistent with his presentation at previous interviews, where it has been noted that Mr Trembath lacks insight and suffers from significant personality dysfunction. He impressed as a man with whom it would be difficult to reasonably negotiate.” |
The author notes at paragraph 49 that “…Mr Trembath’s interactions with X on observation indicated that he does have the capacity to engage X and X appeared to enjoy the interactions with his father.”
For the second (updated) report, X was interviewed when he was then aged 11 years and 6 months.
It is important to put in a series of paragraphs that gives an insight to X and his assessment although this is lengthy. The author at page 22 makes the following comments:
“48. X reported that he was wary of the impact of his interview, noting that his father had become “mad” at him following the release of the previous Family Report as he had not told the writer what Mr Trembath had told him to say. X reported that his father had berated him about this whilst driving together to go fishing. He noted that his father accidentally “got [him] in the chest” with a fishing rod that he was trying to push into the backseat of the car because he was handling it roughly in anger. X noted that Mr Trembath was “apologetic but still mad.
49. When advised that the purpose of the interview was to update the Court about his experiences and views. X told the writer, “I’ve got a lot of things to tell you.” X reported that his mother was “getting charges against her for driving into Dad, which didn’t happen.” He told the writer that, one day prior to his basketball game, his father took him to a gun shop and looked at a rifle. X said, “It was weird, I didn’t want to be in there.” He noted that, on a previous camping trip, he had asked to use a pocket knife to cut something but his father did not have one. X was clear that at no stage had he asked to buy a pocket knife or suggested he needed to own one, as deposed by Mr Trembath (see affidavit of Mr Trembath, filed 14 May 2014, paragraph 19).”
“52. X reported that Mr Trembath often “gets mad” and “doesn’t plan stuff very well… even when he makes a plan, he tries to extend [the time], he [once] threw a remote [control] at [X] for saying no [to more time].” X reported that Mr Trembath became “really angry” when X insisted on sticking to set (presumably Court Ordered) times. X said Mr Trembath “gets really angry easily over simple things,” describing his father being angry if X did not want to come camping with him or expressing an alternative view (e.g., about what to wear). Later he gave the example of his father getting mad that he did not barrack for Carlton, like him. He said, “I have to say I have Carlton as my second team,” to placate his father. X said, “He gets really stressed, even in public. He tells random people lies.” X described an example of Mr Trembath telling a stranger at a café about the unjust Court Orders that restricted his time with X. X said, “I just felt really embarrassed.
53. X reported that his father “threatens” him. He said Mr Trembath told him “a while ago” that he would shoot Ms Colbert, but more recently tended to threaten suicide, making comments about killing himself or vague comments about “going away.” Later, X reported that his father sometimes “gets drunk” and called him “weird things like ‘spastic’ and ‘fatso’.” X appeared disgusted, saying, “I think, Why are you a dad?
54. X reported that he sometimes “fakes sick” to avoid activities planned by Mr Trembath. He reported that he did not like sleeping overnight with his father and wanted “daytime only.” He was clear that he did not want to travel to and from (omitted) in one weekend, noting that Mr Trembath “always wants to spend time with me but spends all his time in the shed.” He recalled that his father occasionally left him overnight in the care of “other people,” whom he barely knew, while Mr Trembath did nightshift. X reported that Mr Trembath had also left in him the car while he worked day shifts, for four to five hours. X thought this happened as recently as last year. When in Melbourne, X reported that there was “one main house” that Mr Trembath liked to stay with X. X raised concern about possible drug-related behaviour at the home and described feeling uneasy and uncomfortable.”
“57. With respect to spending time with his father, X reported, “I almost have to be forced and I have an alright time. But if it was up to me I wouldn’t go again.
58. The writer noted the difference in X’s feelings now as compared to when interviewed for the last report and asked what X understood to be the reasons for this difference. X reported that at last interview he tried to be fair, not saying what his father had asked him to say but not telling the writer the full extent of the issues either. He said, “Last time I didn’t know what he’d do [in response to hearing X’s views]. Now I know and I know I’ll get over it. It’s got worse and worse over the last year. He’s got better in some aspects, like he’s not smoking as much, but I really… I just don’t like how he is.” X was clear that the writer should include his detailed responses in this report.”
The parties evidence
In a learned article titled “Litigants in person: Guidelines for the Federal Circuit Court” by my brother Judge Scarlett at page 10 he says under the heading of “Affidavits” the following:
“Some self-represented litigants do not understand the rules relating to affidavits, not just the technical rules, such as numbering pages and paragraphs, but the concept that an affidavit is meant to be a statement of asserted facts, not an expression of the party’s opinions or desires. So often, an affidavit appears as a stream of consciousness ramble…Irrelevant material frequently appears…”
Those observations are relevant to this trial. Both parents appeared in person and did their best in the circumstances but their affidavit material was often unhelpful.
The applicant’s evidence
The applicant father’s primary affidavit filed and allegedly affirmed on 26 June 2013 is rambling and is a mixture of comment, argument and observation along with some useful asserted facts.
His presentation was sometimes troubling for the court, he appeared confused or argumentative on a number of occasions. The following which occurred on 14 February 2014, is an example:
11.30am (c)
MR TREMBATH: “ I guess, in reference to (omitted), I mean, it might be going back some many years, but the fact was I had a loving functional relationship with my boy. This woman at least gave the provision of that allowance. The professor Dr G’s report has probably been read by 30 solicitors including (omitted), who happened to be – who consulted with (omitted) at the time, and as far as I know (omitted) read it as well. And it stipulated no contact whatsoever with Ms Colbert. And that was in relation to the fact that I was raped by this woman. That’s the only time that X could have been conceived. I didn’t know about my celiacs; my malabsorption was so severe there was periods of time, the extensiveness of it, I couldn’t even lift myself out of a – I didn’t have the energy at times to get out of a chair for instance…”
11.40am (c)
MR TREMBATH: “Yes, that is my mindfulness, your Honour, but it’s been torn apart through the years of the discrepancy of the court. And I mean that’s the ravished invoice every time I walk out of this place. The ill placement is that my health is, if anything, it’s – would be a state of impairment in remaining in Melbourne. I have a healthy connectedness with X. At the times when I’m on my own I’m not well that my son makes an incredible difference. And, of course, I’m promoting his life giving, you know, appraisal. I’m all for that. I mean, I spent years as a carer. It was probably most of my life I have that inertness. But the stress inducement that I’ve had from the court has not been favourable. It’s the consequences….”
Noon (c)
MR TREMBATH: “ I don’t know. I think it’s best, in my interests and in X’s short term that it’s – well, in my interest – well, the legal representations, I’m wondering if I can seek a short adjournment, Judge Curtain. Just – you know, there’s…”
HIS HONOUR: “What for?”
MR TREMBATH: “Well, I’ve – there’s been many times where this has created a lot of suicides. I don’t want to be taken back to that displacement.”
The respondent’s evidence
The mother’s affidavit evidence was also a mixture of opinion, argument and some asserted facts.
She presented as more child focused than the father and did her best to put her proposals before the court. I will comment further on the evidence of both parents in the remainder of this judgment.
Relevant legal principles
Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure the best interests of the child is met by:
a)ensuring that child has the benefit of both their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child;
b)protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
c)ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their child.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
a)the child has the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)the child has a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child;
d)parents should agree about the future parenting of their child; and
e)the child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the court in determining what is in the child’s best interests.
In making any parenting order, the court must to the extent it is possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence.
If the court is satisfied that the parents are to have, pursuant to s.61DA(1) of the Act, equal shared parental responsibility, then subject to s.65DAA(6) of the Act, it must turn to ss.65DAA(1) and (5) of the Act to consider equal time, and if that is not appropriate in all the circumstances then ss. 65DAA(2), (3), (4) and (5) of the Act requires the consideration of substantial and significant time.
As stated by the learned Judge in Caravaggio & Caravaggio [2011] FamCA 254 at paragraph 35:
“Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests. Goode & Goode (2006) FLC 93-286.”
Section 60CC factors
The two primary considerations are set out in s.60CC(2) of the Act and are they:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
A recent amendment s. 60CC(2A) of the Act, provides that the court is to give greater weight to s.60CC(2)(b).
They will be considered after the relevant matters in s.60CC(3) are looked at (see Collu & Rinaldo [2010] FamCAFC 53).
Additional considerations are:
To the extent that they are relevant, the additional considerations in sub-section 60CC(3) of the Act are:
(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;
I refer to paragraph 30 above of this judgment which details many comments by X and I will not repeat them here but they are very relevant to this subparagraph.
In the second report dated 10 June 2014 the author makes the following comments:
| “64. At interview for the previous Family Report, X reported diplomatically about his father and presented this as a generally positive relationship, though he noted issues with his father instigating arguments with his mother, blaming his mother for X’s decisions or feelings, and clearly emphasised the stronger emotional attachment to his mother, who imbued a sense of stability in him. X’s tendency to avoid sharing his feelings with his father in order to prevent conflict was also noted. At that time, the writer hypothesised that this was problematic for the future of the relationship. The writer questioned whether the interactions between them would be as positive (as observed on the day of interview) when X’s wishes conflict with his father’s, which was likely to increase as X developed towards adolescence. |
| 65. One year on, X presented a largely negative view on his relationship with his father. Consistent with his previous interview, X impressed with an open and genuine manner. He appears to have considered deeply the impact of his report on proceedings over the interim period and to have reported much more frankly on matters pertaining to his father at this interview, abandoning the diplomatic approach he maintained last interview. This appears to be due to a number of factors, both changes in the nature of the relationship and developmental changes in X’s perspective about what would be a ‘fair’ outcome with respect to his parenting arrangements, which will be discussed further below.” “69. Consistent with his previous interview, X’s views and opinions appeared well considered, based in [sic] his own experience and, in the writer’s opinion, should be given significant weight in the determination.” |
I accept this assessment and in the circumstances, put significant weight on X’s views.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
From all the evidence presented to the court, including the contents of the two Family Reports, it is apparent that X has a close and loving relationship with his mother.
In relation to the father however it appears that it has changed over time and more recently has become strained.
The author in the second report comments on this at page 29, paragraph 66 where she says the following:
“66. X reported that Mr Trembath’s conduct had worsened over the past year, which may be true. It is also possible that it is X’s increasing maturity and individuation that has highlighted the dysfunction in the relationship and brought into sharper focus his father’s shortcomings when compared against his ideals; there is a growing sense of anger in X at his father’s conduct where it conflicts with his own developing moral code and sense of what it means to be a man and a father (e.g., such as on issues with respect to treatment of disabled people and women). X’s most recent (2013) school reports note his strong sense of social justice, maturity and advanced language and literacy skills, which were evident at interview. X’s willingness to speak candidly at this interview was possibly a reflection of his increased experience and confidence in the process and his difficulty in having his father hear his views when voiced by him or his mother.”
And the author also comments at page 30 paragraph 68 of the report where she says as follows:
“68…Mr Trembath continues to display a lack of attunement to X and to prioritise his own needs during time together, resulting in high dissatisfaction and avoidance for X…”
(ii)other persons (including any grandparent or other relative of the child);
No significant evidence was led on this topic to enable the court to comment with any confidence on the role of any extended members of X’s family.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child;
The evidence which is not clear but suggests that the main decision-maker since separation has been the mother given her role as primary carer with some past consultation with or discussion with the father. Over time this seems to have evolved in the mother making the major decisions and the father being subsequently informed of the outcome.
(ii) to spend time with the child; and
The father historically has spent significant time with the child over the years save for one period of 10 months a couple of years ago. In March this year I ordered that there should be supervised time with the child and the father to undertake drug testing. He has not complied with these orders which is very troubling given his concerns for and stated belief that he should have a regular and consistent relationship with the child. When cross-examined on this issue he said the following:
HIS HONOUR “Have you done them?”
MR TREMBATH: “No. I - I’ve recently wrote an email to Lampe Lawyers regarding that, but I - I - some of it’s not conducive with my stress condition. That is one factor. I completely feel that I’m subjected and feel humiliated and dehumanised by having to prescribe to that regime. Some of this has precipitated because I passed 30 of these screens, on the basis that if I get a - if the court gets a clear screen or at least the mother’s lawyer does, I get to see my son. On 80 per cent of those occasions, the mother did not honour those agreements. So this is why, for me, the screen process wasn’t set up, “You passed the screen. You get to see your boy.” Where I work in the disability field, I know many of these people at clinics like Dorevitch, and I could not, for the life of me, walk in there and have those people, after I’ve taken so many residents there for urine screens themselves, for sicknesses, and blood tests, to subject myself to that. I - I just couldn’t.”
(iii) to communicate with the child;
Historically both parents generally have communicated frequently and regularly with the child but more recently it appears that the poor relationship between the parents has meant that the father has not had frequent and regular communication with X for many months.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
Both parents to the extent of their financial capacity appear to have provided support for the child to the best of their capacity. The father has regularly and promptly paid assessed child 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;
Any separation between X and his mother would have a very negative emotional effect on this boy and is not something that would be encouraged by this court, save for short periods, such as holidays and weekends.
In relation to the father it is not proposed that there should be any separation between the two, however it is important for the father to realise his past behaviour has impacted on their relationship. If he is to ensure there are no separations between the two, then his use of illegal drugs must cease, otherwise it clearly will have a negative impact on their relationship.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There has been no significant evidence led on this topic and the court is unable to comment any further.
(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;
Not relevant.
(f) the capacity of:
(i) each of the child's parents;
(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;
In relation to any other person including the grandparents or relatives of the child the court cannot comment as little evidence was led on this topic as noted above. As to the mother the court has little concern about her capacity to provide for the needs of X including his emotional and intellectual needs.
In relation to the father it is a different issue. The report by Dr M regarding the father is very worrying. It is referred to in the second Family Report at page 20 where the author says the following:
| “43…Dr M has prepared a report detailing his comprehensive assessment of Mr Trembath (dated 31 May 2014), conducted over five meetings with Mr Trembath and informed by a selection of documents provided by Mr Trembath. To assist with compliance of the Order for Dr M to deal with the matter of Mr Trembath’s relevant psychiatric history (paragraph 17(a) of the Orders made 26 March 2014), the writer also provided Dr M with the previous psychiatric assessment of Mr Trembath completed by Dr K (dated 5 December 2006). |
| 44. Dr M reported that Mr Trembath impressed as a genuine and caring person and he had no reason to suspect that Mr Trembath was deliberately attempting to exaggerate, minimise, or otherwise distort the issues. Dr M’s report paints a fairly bleak picture of Mr Trembath’s childhood, noting significant childhood abuse by his father and lack of protection from his mother, resulting in treatment for Posttraumatic Stress Disorder in 1995-1996 and 2007 from Dr G. Dr M notes, “While [Mr Trembath’s] thinking is often circumstantial and confused, it is not quite typical of psychotic thought disorder” (page 5). |
| 45. Dr M opines that, although Mr Trembath has features of depression, anxiety, posttraumatic stress, and even schizophrenia, he does not currently meet diagnostic criteria for a psychiatric disorder and expresses doubt that he ever has. Dr M notes, “Importantly, however, these current and/or fluctuating psychiatric symptoms are superimposed on a complex and significant personality disturbance. (That is, these signs are not part of a discrete disorder, but are a function of long term and habitual behavioural patterns and psychological functioning)… It is hard to put a definitive diagnostic label on this personality style and, as Dr K noted, it is probably not sufficiently severe or distinct to be called a disorder. Nevertheless, it bears features of what is often referred to as “schizotypal” personality (that is, odd and unusual behaviour and thinking styles, but without any “first rank” symptoms)” (page 5-6). Dr M notes that this unusual personality style can make interpersonal interactions challenging. |
| 46. With respect to prognosis, Dr M opines that change is “highly unlikely” and suspects that Mr Trembath “will continue much as he is for the foreseeable future,” with an expectation that the personality traits may become attenuated later in life, as is typical. He suggests that intensive treatment will be of limited assistance to Mr Trembath, but notes benefits in Mr Trembath developing a trusting relationship with an appropriate health provider or similar “responsible adult” to whom he can turn to for support and advice during difficult times. Dr M supports the conclusions of Dr K that, “…it is very unlikely that [Mr Trembath] would do anything to deliberately hurt X” (page 7).” 63. I also note that at page 30 paragraph 68 of the second Family Report the author says the following: “68….Mr Trembath’s ego-centricity raises significant concerns about his capacity to provide for X’s emotional and intellectual needs.” |
(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;
This overlaps with other considerations in s60CC(3) considered above.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
Not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
In relation to this subparagraph again there has been some overlap and sub-paragraphs (a) and (f) cover this topic.
(j) any family violence involving the child or a member of the child's family;
The mother sought and obtained an intervention order from the Preston Magistrates’ Court on 8 October 2002 against the father. She also obtained further intervention orders from the Heidelberg Magistrates’ Court on 7 April 2014 and 23 June 2014 against the father for the benefit of herself and X.
The father advised the court that he also obtained this year an intervention order against the mother from the same court to prevent her coming to his property and that the mother’s most recent intervention order was subject to an appeal by him lodged recently in the County Court of Victoria.
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order; (ii) the circumstances in which the order was made; and
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The clear inference the court can draw from these intervention orders sought by the parents is that their relationship is dysfunctional, confrontational and litigious and this cannot benefit the child. They should minimise their own interactions to avoid repetition of this.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is clearly preferable to avoid further proceedings; I shall draft orders that will best comply with this. The parents must view litigation as a last resort.
(m) any other fact or circumstance that the court thinks is relevant.
The emotional and psychological fragility of the father, which has been commented on, but it is an issue that is not going to disappear and the parents and child must understand and work with it.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:
“The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship””.
It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:
“…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one.”
At paragraph 170, the Full Court said as follows:
“Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].”
It then went on to say that there are three possible interpretations of s.60CC(2)(a) of the Act and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.
The ‘present relationship approach’ was defined by the court in paragraph 118 as follows:
“(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).”
The ‘prospective approach’, which I will apply in this case, was also set out at paragraph 118 as follows:
“(c) the third interpretation is that the court should consider and weight the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).”
Section 60CC(2)(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 his helpful report dated 31 May 2014 Dr M says at page 7 that:
“…it is very unlikely that he [the father] would do anything to deliberately hurt X…”
After reading this report, the second Family Report, the parties’ material and observing and interacting with the father over the many days of this trial, I am more concerned about the potential for psychological harm he may unintentionally or otherwise impose on X should he have a significant role in the child’s life.
Parental Responsibility
The parents have not communicated at all in the last five months and each has a current intervention order against the other.
In my view their relationship is unlikely to improve in the short term:
(a)given the father’s own issues;
(b)the father’s allegations that the mother is over controlling and at times intimidates him; and
(c)the confrontation in the car park in March this year has created an air of distrust. The father alleges amongst other things that the mother drove at him deliberately and the mother alleges he stood in front of the car deliberately and kicked and hit the car in her attempt to leave with X.
In cross-examination the mother put a quote from the report from Dr M at page 7 as follows:
“As a result of this personality style, he is sometimes unpredictable and hard to reason with. He can be impulsive and some of his decisions – while seeming to him to be entirely rational and of the best intentions – do not always seem sensible to others...”
And she asked the father whether he conceded that.
The father said in answer:
MR TREMBATH: “Well, to some extent. I don’t have that all the time.”
And then he conceded that he has it from “…time to time…” in relation to stress.
I noted that notwithstanding the comments in the Family Report about parental responsibility and the recommendation that the mother should have sole parental responsibility, that the father did not cross- examine the expert on this topic.
In all the circumstances it is my judgment that the presumption that the parents should have equal shared parental responsibility is rebutted in this case as it is not in the best interests of X, particularly given that to have this in an order would in my view would lead to the probability of further litigation between these parents.
Conclusion
During the cross-examination of the family consultant I had the following exchange with her:
HIS HONOUR: “Why don’t you go to paragraph 54? Let me assist you. If you can go to paragraph 54, please, Doctor, of your report”
DR P: “Yes.”
HIS HONOUR: “It says this:
X reported that he sometimes fakes sick to avoid activities planned by Mr Trembath. He reported that he did not like sleeping overnight with his father and wanted daytime only.
How strongly was that put by him? Do you feel that there’s some substance in that comment?”
DR P: “Yes, I’m thinking back to his manner in the interview. And - and all of X’s commentary was quite confidently put, and quite - he was quite assertive about the - and quite thoughtful about the comments that he made. So when he was describing how he has tried to placate his father, and not upset his father by having to come up with a - what his father might accept as a reasonable excuse. He has come up with having to pretend he’s unwell. And that he didn’t recall sleeping overnight as being a positive time...”
HIS HONOUR: “…And that seems like he has really considered that as an option?”
DR P: “Yes, and it’s not - I think where Mr Trembath was describing that example of the (omitted) visit. X acknowledges that for short times they do have a good time. But the - the thing that stood out for him about that visit was when they went to the café, at the base of the (omitted), Mr Trembath found it really difficult to not engage a complete stranger in discussion about court activity.”
I also had the following exchange:
HIS HONOUR: “…If X faced an order to go with dad every alternate weekend, Friday to Tuesday. I expect what he would say is, “I’m not going,” or he would feign illness or something like that, wouldn’t he?...”
DR P: “…It’s hard to say because he’s - he is such a compliant child.”
HIS HONOUR: “Yes?”
DR P: “And - but I think he would be left with a real sense of powerlessness and helplessness. He has been very clear about what his views are. And he has given very reasonable and sound logic for the same. And I think that that would be sending him a message that his views are not important. And that the concerns that he has raised about how he feels during that time, and the impact that it has on him, is - is not of concern to the court.”
HIS HONOUR: “Well, emotionally, he would find it probably distressing?”
DR P: “Very distressing, yes.”
Counsel for the Independent Children’s Lawyer when cross-examining Dr L put to her paragraph 34 of the first report which is:
“Prior to being advised of X’s views, Mr Trembath stated that they should be given “a reasonable amount of weight” but that “Court needs to create a happy family for us.” When provided with feedback about X’s views, Mr Trembath was somewhat dismissive of them, suggesting that X did not know what it would be like to have a different arrangement therefore his views should not be taken into account. When advised that the Court would likely consider the views expressed by X given his age and maturity, as this was required by law when determining what was in his best interests, Mr Trembath became angry and told the writer, “Well if you do, you need to be prepared for a backlash. I’ll have to launch a passive protest and I won’t see X at all. It’s what I’ll have to do. I’ll have no choice. The Court leaves me no option.””
MS. MANDELERT: “He said that to you at that first report?”
DR P: “He did.”
MS MANDELERT: “Now, if, in fact, his Honour orders what you are recommending – and I might indicate the independent children’s lawyer is of the same view that your recommendations are extremely carefully done and are very much in line with what - protecting X, making sure he does continue to have a relationship with his father but it’s in a safe environment – if he doesn’t get his way, he has indicated he will not accept supervision and he’s not going to do drug tests. What does that say to you if he has told his Honour that he’s not going to do either of those things”
DR P: “I think that tells me that Mr Trembath really struggles to understand the impact of his own behaviour on X and to understand what X’s needs are at the most basic level - what he needs from a relationship with his father and it speaks to an egocentricity that was – is consistent with the experience that I had of Mr Trembath in both interviews, but it’s concerning that he’s not able to put himself in X’s shoes and think about what X needs at this time.”
MS MANDELERT: “How do you think X would react if he learns that these are the orders that are to be put in place and that his father says, “Well, I’m not going to do that?”
DR P: “I don’t think he will be surprised to be honest. I think that’s well within X’s expectations that – that his father would find it difficult to – to see the views of other people and understand the – the reasoning of the court, though I would say he would be very disappointed, but accepting.”
MS MANDELERT: “Accepting of it?”
DR P: “Yes.”
In relation to the father’s use of marijuana the following exchange took place between Counsel for the Independent Children’s Lawyer and Dr L:
MS MANDELERT: “He’s still smoking marijuana ?”
DR P: “Yes.”
MS MANDELERT: “…and you have expressed concerns about that, certainly other psychiatrists and psychologists who have given reports have been concerned that he is still using marijuana. That certainly has a bad effect and can influence, effectively, his ability to care and look after his son and secure – make sure that he is secure and safe. Would you agree with that?”
DR P: “Well, it – it impairs cognition and thinking and superimposed on a difficult personality, such as Mr Trembath. It really muddies the waters and makes it difficult, I think, to – for Mr Trembath to exercise good judgment.”
MS MANDELERT: “Would that be a concern how it would impact ?”
DR P: “Certainly.”
MS MANDELERT: “With X if he was having?”
DR P: “Certainly.”
MS MANDELERT: “Unsupervised time at this point in time, until such time as there are clear screens and?”
DR P: “I think the drug use of – of itself is problematic but it’s also Mr Trembath’s attitude to – to discussing the drug use. I mean there’s plenty of people who have – who have problematic substance use but are able to discuss why they use it, in what context and – and talk about, you know, a desire to change or, you know, what do they – what do they benefit from, what are the costs, whereas Mr Trembath was not able to demonstrate any reflective capacity around the – the pros and cons of this behaviour and so that’s – that is an issue because I see no motivation or will to change his – his use of cannabis…”
Two matters are very clear in this case: if the father is child focused and wants unsupervised time then he must discontinue the consumption of illegal drugs.
Secondly, X is about to turn 12, and he has well considered views that according to the family consultant and the Independent Children’s Lawyer should be given significant weight. I accept that view and the recommendations in the second Family Report which in all the circumstances, are in the best interests of X.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Curtain
Associate:
Date: 3 October 2014
Key Legal Topics
Areas of Law
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Family Law
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Consent
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Remedies
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Procedural Fairness
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Injunction
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