Vigano and Desmond

[2010] FMCAfam 1018

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VIGANO & DESMOND [2010] FMCAfam 1018

FAMILY LAW – Parenting orders – time spent with between young children and their father – father in prison – long sentence to serve – mother opposes contact.

Family Law Act 1975 (Cth)
Sentencing Act 1991

Applicant: MR VIGANO

Respondent: MS DESMOND

File Number: MLC 10076 of 2008

Judgment of: Hartnett FM

Hearing dates: 13 & 14 May; 29 July 2010

Delivered at: Melbourne

Delivered on: 24 September 2010

REPRESENTATION

Counsel for the Applicant: Ms Bartfield

Solicitors for the Applicant: Lewenberg & Lewenberg

Counsel for the Respondent: Mr Hutchings

Solicitors for the Respondent: Altavilla Vessali Barristers & Solicitors

Counsel for the Independent Children’s Lawyer: Ms Buchanan

Solicitors for the Independent Children’s Lawyer: Kenna Teasdale Lawyers

ORDERS

1. The father spend time and communicate with the children [X] born [in] 2002 and [Y] born [in] 2004 by correspondence in the form of cards, letters and gifts at all reasonable times.  The mother to provide same to the children save the mother is at liberty to return same to the father if such correspondence contains matters that would not promote the best interests of the children.

2. In the event the children express a wish to see the father or telephone the father, the mother take all reasonable steps as may be necessary to ensure the children spend time with and/or telephone the father.

3. Otherwise all extant applications are dismissed.

AND THE COURT NOTES:

The ongoing operation of the final orders made 14 May 2010.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Hartnett delivered this day will for all publication and reporting purposes be referred to as Vigano & Desmond.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 10076 of 2008

MR VIGANO

Applicant

And

MS DESMOND

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The father initiated these proceedings for parenting orders with respect to the parties two children [X] born [in] 2002 and [Y] born [in] 2004.  The children are now aged 8 and 6 years respectively.

2. These proceedings are unusual in that the father is incarcerated and will remain so for a long time.  He first entered jail some months before the child [Y]’s birth and he is not eligible for parole release until 2018 when the children will be 16 and 14 years respectively.

3. The father was imprisoned at [B] Correctional Facility at the time of the making of Children’s Court orders and the earlier orders of the Court both of which provided for him to spend time with the children.  The father has since been transferred to the [L] prison in Castlemaine being a further distance away from the children’s home.  The father’s transfer from [B] Prison to [L] Prison was a transfer from a maximum security facility to a medium security facility.  This transfer increased the travel time for the children to 90 minutes travel each way.  The visitation centre at the prison has been structured to accommodate children such that there are activities for them in a safe environment.

4. The proceedings also occur in a context where the mother consented to the earlier orders that the children visit their father in jail with those orders operational for a considerable period.  The mother is now firmly opposed to the father’s application and wishes for it to be dismissed.

5. The mother’s earlier consent followed proceedings in the Children’s Court where that Court found both children to be in need of protection in their mother’s care.  At that time and being May 2008, the Children’s Court required the mother to give an undertaking.  Four conditions applied to that undertaking s.278 Protection Order (as it was described) which were as follows:

   1.Ms Desmond agrees to continue working with [omitted] Family Services for as long as the service recommends.

   2.Ms Desmond agrees to allow Ms G, paternal aunt and Mr V, paternal grandfather, to facilitate the children’s access with their father on a fortnightly basis. Mr V will be responsible for driving the children to access.

   3.Ms Desmond will ensure to the best of her ability that Mr M will not be present during access.

   4.Ms Desmond will endeavour to make an application to the family court during the period of the undertaking.

   The undertaking was to last until 5 November 2008.

6. When the matter came before this Court it was on the father’s application.  He claimed the mother was refusing to make the children available to him (making them available being a condition of the undertaking but that undertaking was no longer in force), discouraging them from attending and denigrating him to the children.  He claimed his father and sister were abused, threatened and even physically attacked by the mother when they attended the mother’s home to collect the children in August 2008.  He further claimed the mother was addicted to illicit substances and that her de facto “Mr G” had on at least one occasion hit the children.  He claimed the children expressed a clear dislike and fear of Mr G.  He claimed in addition that the mother neglected the children’s health care.

7. The mother has three other children from a previous relationship namely [A], [B] and [C] aged 19, 17 and 14 years at the time of the trial.  The father’s sister Ms G is now in a relationship with the mother’s ex-partner and father of these three elder children, he being Mr M.  In addition the mother has a sixth child with her current partner, Mr G with whom she does not live.  That child is [Z] born [in] 2008 and now aged two years.  Following the father’s incarceration in late 2003 the mother visited him in prison until 2004.  On many occasions she took the two children of her relationship with the applicant with her.  She then ceased such visits and all communication with the father consequent upon her discovery of the type and severity of his crimes.  The father next became involved with his children in late 2006 and as a result of the Children’s Court proceedings which ended in 2008 and ultimately with the undertaking given by the mother.  The father’s sister Ms G and his father Mr V have throughout been willing and able to transport the children to the jail.  On many occasions and pursuant to court order they have done so.

8. Interim orders were made with the consent of the mother on

   
   

   15 December 2008 with further orders being made – also by consent – on 14 April 2009.  The earlier orders provided for the father to see the children at his then place of incarceration, the [B] Correctional Facility, on one Sunday in each month for one hour.  That time spent with occurred over many months and the father claimed the children enjoyed the visits and seemed very eager to be there.  The contact occurred in the prison visitor’s centre.  There have been occasions however since the making of the December 2008 orders when the mother has failed to make children available or when [X] has refused to attend.  In addition the father has telephone contact with the children.  He sought in these proceedings as final orders that he see his children twice each month with sufficient time to enable them and he to have a full three hour period of visitation.  He sought variation as to his telephone communication to make the hours of contact more flexible.

9. Allegations of child abuse were made in the course of the proceedings.  The alleged perpetrator was the mother’s partner Mr G and the abuse was as allegedly reported to the paternal grandfather and aunt by the child [Y], and then corroborated by the child [X].  The allegation was that “Mr G had poked his fingers into [Y]’s anus and smacked him on the bottom”.  This allegation was specifically contained in the affidavit of Ms G sworn 5 May 2010 and was the basis of a Form 4 Notice of Child Abuse or Family Violence filed on behalf of the father on 10 May 2010.

10. On 14 May 2010 final parenting orders were made for the mother to have sole parental responsibility for the children and for them to continue their residence with her. On an interim basis it was ordered the children would continue their contact with the father each fourth Sunday commencing 30 May 2010 with the grandfather collecting the children from the mother’s home at 10:00am and return them to her home at 5:00 to 5:30pm. Prior to this and on 24 March 2010 an order was made for the children to be separately represented (pursuant to s.68L(2) of the Family Law Act1975) with the Independent Children’s Lawyer to obtain a psychiatric assessment of the father, if funding permitted.  Orders for the appointment of an Independent Children’s Lawyer had in fact been made in November 2009 but no separate representation was arranged by Victoria Legal Aid.  Subsequently the 24 March 2010 orders were made and an appointment funded.  Unfortunately there was no funding for the provision of the psychiatric assessment.  The Court funded the preparation of a family report in 2009 and that report was dated 21 August 2009 and prepared by Dr W Regulation 7 Family Consultant. It was introduced into evidence and Dr W cross-examined in the proceedings in May 2010.

11. The mother’s evidence is essentially that the children do not want to visit their father in prison.  She claims they are carefree, happy children not saddened by their father’s predicament and should be allowed to live as normal a life as they can.  She claims further the emotional cost to her of having the children attend is high and affects her ability to function and parent effectively. In light of her evidence the Independent Children’s Lawyer and father seek visits to the prison by the children every 6 instead of 4 weeks to assist the mother in her ability to comply with any likely court orders.

12. The father has not participated in a sexual offenders program in the prison. He claims that is not available to him until he enters the last three years of his sentence. Nor has he engaged in any drug rehabilitation program. He commenced using drugs at about 12 years of age and described in his past as being addicted to marijuana and using amphetamines, heroin and, after meeting the mother, ice. He has completed whilst in jail an “exploring change” program and a “cognitive skills” program. The father did not recall the crime for which he was first sentenced to imprisonment. In fact he had very limited recall of his criminal history, which is extensive and which commenced in 1986. His offences include a rape conviction in 1994 with a release in 2001 having served a full term. He did not, during that time, complete a sex offenders course, despite being offered same. On 14 October 2004 the father pleaded guilty to one count of rape committed on 17 November 2002. He was ordered to serve 12 years imprisonment with a minimum of 10 years to be served before becoming eligible for parole. He was subsequently tried in relation to a series of serious offences committed in July 2003 and received an extension of his total effective sentence with a new, single, non-parole period of eleven years and three months. The father is a serious sexual offender as defined in s.6B(2) of the Sentencing Act 1991.  He does not consider he needs treatment in relation to this offending.  He omitted a description of the nature of his offending from his affidavit material.  It was placed before the Court in exhibits tendered including the judgment of the Supreme Court of Victoria Court of Appeal of

    
    

    24 August 2005.  Also in evidence was an earlier report by Dr J a psychiatrist who examined the father in relation to his criminal proceedings and who diagnosed the father in September 2004 as having an anti-social personality disorder not amenable to treatment.

13. The mother gave evidence in the proceedings of horrific domestic violence perpetrated upon her and the children by the father.  In one part of her affidavit filed 8 April 2009 she said as follows:

    “13. I refer to paragraph 8 of the father’s affidavit and deny the allegations therein.  I say that the reason was because of violence perpetrated against me by the father.  On one occasion in 2001, the father punched me in the stomach when I was 11 weeks pregnant with our first child, [X].  He almost killed me by strangling me and beating me.  As a result I had a blood clot in my eye and bruises on my neck.  My 18 year old daughter, who was 10 at the time, called the [omitted] Police who attended and I believe saved my life. 

    
    

    I applied for an intervention order after this.

    14. I say further that the father is an extremely dangerous man.  On various occasions, the father bit me on my back, held a knife to my throat, and a cricket bat to my head.  On one particular occasion when I tried to stop the father from removing [X] from my care, he punched me in the ribs, fracturing 2 of my ribs.

    15. On another occasion, the father had climbed into my house through a window and was hitting me.  [X] was present in the room and he demanded I give her to him.  When [X] was alone with her father in the bedroom, she suffered a bite on her face.  I and my 3 older children saw she had teethmarks and a large bruise on her right cheek.  She was younger than 12 months at the time.  I did not leave, as I was alone with no family, no friends and had no support what so ever.  I was also extremely afraid of the father.  The father also raped me during the relationship.  On another occasion the father asked me if I had learned to gargle.  He then said “After I slit your throat and your mouth is full of blood”.  The father was holding a knife to my throat at the time.”

    The father denied being physically violent to the mother and denied punching her, biting her and/or attempting to choke her.  Further the father denied biting the child [X].  I accept the evidence of the mother and her evidence of the trauma it still occasions her.  A more detailed description of that violence and its effects is set out in her affidavit of 13 January 2010 and I accept the contents of that affidavit, including its expression of the wishes of the children.  The father was convicted in 2002 for recklessly causing injury in an assault upon the mother with his sentence being wholly suspended for three months. He then entered prison in June 2003 when [X] was just over 12 months of age.

14. Ms G’s relationship with the mother is now poor. They were, previously and for some years, very good friends.  Ms G resides with Mr M and there have been episodes of domestic violence between them necessitating police intervention. Mr M has seriously physically assaulted Ms G.  Ms G considers the mother to have destroyed both her life and that of her brother by introducing them to the drug, ice.  She claimed the drug destroyed her and caused her to lose everything including her marriage and home.  Ms G was not a reliable witness.  She denied current drug use other than marijuana which she described as occasional use. She nevertheless tested positive to both cannabinoids and methylamphetamine (“Ice”) on a drug screen produced in evidence in the proceedings.  Ms G’s evidence as to the abuse allegations made by [Y] was that at the time her father did not understand and she translated (what [Y] had said) to her father in Italian.  She claimed her father was shocked and said nothing further.  Her evidence was that she also was shocked and that [Y] was very serious when telling her.  She gave evidence that she told her brother of these allegations on the day they were made and during the prison visit.  Ms G claimed she could not recall how her brother reacted when informed that his son had been digitally penetrated by his mother’s partner. Her brother gave contradictory evidence. He claimed that at no time were the allegations ever repeated to him by Ms G or their father. He discovered the allegations were made subsequently and from a third party.  Ms G did admit that she slapped the mother at a change-over of the children and otherwise I prefer the evidence of the mother and Mr G as to what occurred on that day.

15. Dr W’s evidence was that as contact has occurred and a relationship commenced, the children, in the absence of knowledge of their father’s crimes, would be quite confused as to why it had suddenly stopped.  She observed [X] to enjoy her father’s company but also to be uncomfortable with him.  She expressed the view that in ceasing to see her father [X] would have a more negative view of him as she is unable to see the positive sides of him.  She conceded however that she could not be reasonably certain that the children would not be adversely affected by continuing to see their father.

16. Dr W’s recommendations as contained in her report that the children spend an overnight period with the paternal aunt and paternal family altered in the witness box after her hearing evidence as to Ms G’s drug use and evidence as to her de facto partner, whom Ms G described as a “changed man”, not sufficiently changed in that he battered her “black and blue” in 2009.

Conclusion

1. The nature and frequency of the father’s crimes has resulted in him being registered as a serious sexual offender.  The mother as a consequence and at this stage in her life can see no benefit to the children – or herself – in their pursuit of any relationship with their father until his release and even then it will be problematic.  She queries how they can have a meaningful relationship with their father when he is incarcerated for such a long period, almost their entire childhood.  The reason for her consent to earlier orders was a combination of her ongoing friendship with Ms G, the paternal aunt, and her feeling of having no choice in her dealings with the Department of Human Services.  The revocation of her consent and bitter cessation of her friendship with Ms G are both quite longstanding.  I accept that the reality is that she has not thought it in her children’s best interests to visit their father in jail for the entire time that they have done so.

2. The prison environment at [L] is a satisfactory one, conducive to family meetings.  [L] itself is some distance from the children’s home and thus the day requires a commitment on the part of all – the children, their mother, their paternal aunt and paternal grandfather.  The elder child would have little or no recall of her father outside prison and the younger child has never known him save as a prisoner.  They have moved on with a family life as structured by their mother and which includes a step-father and four other siblings.  Their mother describes it as a now secure and loving environment and the imposition of the prison visits destructive of that environment.  Her new home environment is one the father would never be invited into.

3. The father claims to want to see his children although interestingly he declined a visit when [Y] was to go alone on one occasion.  He wants to see them albeit he acknowledges he can play no real part in their lives.  The visits have enabled them to see him and know he exists.  They provide little else.  I accept the children do not wish to go or at times are ambivalent.  They have no real understanding of their father’s crimes save what their mother has told them. As comprehension dawns on them they may become afraid of him and have no desire for any form of communication and yet such communication and/or contact may be imposed upon them by the ongoing operation of an order of the Court.  Increasingly also the mother’s anxiety levels are rising consequent on the forced (upon her) visits.  They are now a form of trauma for her.

4. The Court must consider the best interests of the children as the paramount consideration.  Whilst the father may gain some benefit in seeing his children, the usefulness of such visits for the children is questionable.  The visits are not supported by their mother and they know it.  The visits disrupt the family life established by the mother and her new partner and the mother would not willingly take the children to the prison.  That task is left to the father’s family members who have now made an allegation of child abuse against the mother’s partner which on the balance of probabilities I find unsubstantiated.  Further, I accept the evidence of Mr G.  The mother with the assistance of her partner is the sole provider of physical, emotional and financial support to the children.  She needs to be supported in that role so that she functions optimally and in so doing is able to promote the children’s best interests.

1. I have considered the primary and secondary considerations as set out in s.60CC of the Family Law Act 1975 and particularly had regard to the mother’s necessity to fulfil her parental responsibilities in the absence of any meaningful contribution from the father.  I will dismiss the father’s application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date:  24 September 2010