Vyasa and Gerard

[2016] FamCA 844

FAMILY COURT OF AUSTRALIA

VYASA & GERARD [2016] FamCA 844

FAMILY LAW – CHLDREN - Where there is no current order for face to face time between the children and the father – importance of a meaningful relationship – supervised time ordered.

APPLICANT: Mr Vyasa

RESPONDENT: Ms Gerard

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

SYC 6704 of 2014

DATE DELIVERED: 30 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 28 September 2016

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Gillies

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: O'Donnell & Associates Family Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the children, B born … 2012 and C born … 2014 (“the children”) live with the mother and spend supervised time with the father.

2. That the children’s supervised time take place at the D Play Centre or at E Play Centre or at such other venue as is agreed between the father, the mother and the supervisor.

3. That the supervision be provided by F Centre, G Centre, or such other organisation as the mother and the father agree.

4. That the children spend time with father from 10am to 11.30am each Sunday.

5. That for the purpose of the children spending time with their father, unless otherwise agreed, the mother shall deliver the children to the contact venue so that they can pass directly from the mother to the father in the presence of the supervisor and the mother shall collect the children from the venue, in the presence of the supervisor, at the conclusion of the time.

6. That the orders for Facetime contact between the children and the father made 25 June 2015 be vacated.

7. That the father meet the cost of supervision.

8. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vyasa & Gerard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6704 of 2014

Mr Vyasa

Applicant

And

Ms Gerard

Respondent

REASONS FOR JUDGMENT

1. Mr Vyasa (“the father”) and Ms Gerard (“the mother”) are the parents of two children, B born in 2012 (four years old) and C born in 2012 (two years old).

2. The parents commenced co-habitation in May 2010, married in 2011 and separated on 9 September 2013.

3. The children currently live with the mother and spend no time with the father. They last spent time with the father in March of 2015. On 25 June 2015, orders were made, by consent, that provided for the children to live with the mother and communicate with the father by Facetime each Sunday and Tuesday between 4pm and 4.30pm.

4. The father sought to vary those orders to provide for face-to-face time with the children. That application was heard by Senior Registrar Campbell on 28 July 2016 and was dismissed. The father filed an application to review the decision of the Senior Registrar and thus this matter comes before the Court on the application of the father to be dealt with as a hearing de novo.

5. The mother opposes any face-to-face time with the children. It is her position that there will be no contact other than electronically, between the father and the children, for the foreseeable future.

6. The Court was assisted by a report from a Single Expert, Child and Family Psychiatrist, Dr H, who saw the family in September 2015.

7. The mother makes serious allegations in relation to the father’s behaviour both during the relationship and afterwards. She alleges that his behaviour towards her was abusive and that his behaviour was seemingly a replication of patterns of behaviour that he had exhibited in previous relationships. It is not necessary to set out here an extensive summary of the mother’s allegations. It is sufficient to say that they include psychological and physical abuse towards her, highly inappropriate behaviour when effected by alcohol, verbal abuse both to her and to other members of her family, and conduct in which the father denigrates her to the children. The mother’s allegations are supported by two former partners of the father who have sworn affidavits in the proceedings and by her parents who have also sworn affidavits.

8. The father denies each and every one of the mother’s allegations. He alleges that the mother has a history of serious mental health issues which affect her attitude towards his spending time with the children.

9. The father does not seek an order that the children live with him. The mother is the uncontested primary carer of the children. The father seeks orders that would allow him to have supervised time with the children initially for one and half hours each week, supervised by professional supervisors. It was the father’s position, in the hearing before me, that if, when this matter is finally determined, the Court determines that supervision should continue, then he will continue to pay for professional supervision for as long as that is required.

10. It is important to note that these proceedings are being dealt with on an interim basis and without any opportunity to test the allegations of either parent.

11. The father placed heavy reliance upon the report and recommendations of Dr H. The mother does not accept Dr H’s recommendations. However, Dr H’s observations and his conclusions are relevant for the purpose of this determination, they being the only objective evidence which is available to the Court.

12. Dr H spelt out the dilemma which will be faced by the Court at final hearing in his report when he commented on the mental state of both of the parents. Dr H stated:

    [The mother] alleges that her husband had a significant drinking problem, although she was not aware of him using illicit drugs during the relationship. In addition she alleges physical and verbal violence including extremely disparaging behaviour towards her. Her corroborative material, while not comprehensively inclusive, appears to be compatible with this. On the other hand [the father] presented very well at my assessment. Indeed it was difficult to reconcile his composed and modest presentation with what appeared to be some quite profane language in a small number of texts, and the more broadly based and very serious allegations of his three former partners, including [the mother].

13. Dr H noted that the father appeared to have presented quite persuasively to two psychiatrists to whom he was referred for assessment by the medical board when he had been charged with alcohol related driving offences.

14. Dr H continued:

    The accounts by [the mother] as well as by [the father’s] two previous partners appear to be concerningly consistent with each other. [The father] expressed the view that the affidavits of his two earlier partners were vexatious and misleading, perhaps reflecting a conspiracy due to some communication between all three women and shaped to his advantage by [the mother’s] solicitor who has a special interest in child abuse. While this may be possible, in my experience it is highly unusual for serial partners to participate, much less report so similarly, unless they have all shared similar very unpleasant experiences.

    I also note [the father’s] use of profanities in the thread of texts between he and [the maternal grandfather] shortly after [B’s] first birthday. [The father] denies having used profanities such as these directed at his wife during the relationship and that this was not his normal way of communication. I find it hard to accept his account in this regard. As a general principle, it takes more time and consideration to spell out profanities in a text than it does to employ them impulsively in an argument. I would have expected more self-censorship in text communications than in face to face arguments rather than the opposite.

15. Dr H stated “Another broad issue is that people with drinking, drugs and violence problems can be extremely mendacious about their behaviour. A common strategy they employ is to counter true accusations with false counter allegations.”

16. Dr H concluded:

    [The mother’s] allegations are of a serious nature and if true, they would mean that a significant risk of physical and/or verbal abuse would need to be considered in the orders. For that reason and in the absence of any admission by [the father], in my view every effort needs to be taken to clarify them. Every effort should also be made to test [the father’s] allegations that the allegations against him by [the mother] and his two ex-partners are fabrications, possibly having resulted from a conspiracy.

17. It cannot be suggested that Dr H, in the preparation of his report, was not fully aware, and appreciative, of the issues which were raised by the mother.

18. The most concerning allegations which were raised by the mother related to the father’s comments to the children. The mother reported that after spending time with her father, B started saying things like “Mummy is bad”, “Mummy is a bitch” and “Mummy is a cunt”. The maternal grandfather reported B, after visits with her father, saying to him ‘Mummy is a freak’ and ‘Mummy is a bitch’. The maternal grandmother also reported similar observations.

19. There is no dispute that these children are securely attached to their mother. Dr H observed the children with the mother and reported that she was patient, warm and responsive with the children throughout.

20. In September 2015, Dr H observed the children with the father. He reports that when, in his presence, the mother told B that she was to see her father, B did not protest but she went quite quiet. C did not seem to understand. B did not protest when her mother left the office, and her father entered. Dr H reports:

    As soon as [B] saw her father she dropped to the floor, crawled over under a chair and started repeating ‘don’t like Daddy’. [The father] tried to greet her and asked her to come over to where he was, but he quite quickly stopped doing this and focused on [C]. [B] kept repeating her statement quite loudly and she seemed on the verge of tears, but over the next minute or two, the intensity of this declaration declined and after about two or three minutes, she was still repeating it, but more as a recitation. In the meantime, [C] had picked up one of the doll figures and had brought it over to his father, who was sitting cross legged on the floor. [C] sat down beside him briefly then he got up and brought another figure to his father and sat down between his father’s knees. By this point, [B] had come out from under the chair and was sitting on the chair smiling at her father and watching what [C] was doing. [C] then got up again and brought a dump truck across to his father, saying ‘Dada’ as he gave it to his father. He then brought over several more toys then the water bottle and a container which had held [B’s] set of doll figures. Surrounded by all these toys he then sat back in his father’s lap.

    At this point [B] climbed down from the chair and brought a number of Duplo blocks across to where her father and [C] were sitting. She smiled at her father and said something about building. They then started building a tower. She and her father talked about the colours of the blocks and she seemed to be providing a commentary on what she was doing. [C] also participated in this play, although somewhat clumsily, and several times he knocked parts of the tower down. [B] did not seem to be upset by this and she and her father reconstructed it. During this, [C] was also trying to tell his father what the various figures and other toys were around him, and his father helped him name them.

    By this stage, about ten minutes into the session, [B] seemed to be very comfortable with her father. She was sitting cross-legged opposite him while they worked on the tower and she seemed to be talking to him in quite a comfortable and contented way. [The father] conversed with her in a quiet and affectionate manner.

    They spent quite a long time working on the tower. After a while [B] left the completion of a larger tower to [C] and her father and asked her father whether he would help her make her own little tower. By this stage she was very focused on him and she started to tell him snippets of information about her daily life, for instance that she was going to be getting a kitty cat for Christmas. [The father] seemed interested in this but he did not use it as an opportunity to seek out details of their daily life. Indeed the conversation that he initiated with [B] was largely about the dolls that [B] had brought to the session. [B] responded to these questions without hesitation.

    By the second half of the session, [B] was playing with her father in a manner which seemed to be one of exuberant enjoyment. At one point she climbed up and stood on one of the chairs, but she came down promptly when her father asked her to. [C] then tried to copy her but also came down when his father asked.

    After about 20 minutes, both children started to extend the scope of their play beyond the immediate vicinity of their father and they moved over to the dolls (sic) house where they resumed some type of play they had been doing with their mother. Their father joined them there. He noticed that there were some snacks that their mother had left and asked them if they wanted something to eat. They each had a little bit.

    A cycle that was observable throughout the session was that when [C] moved away from his father to do something else, he would only stay away for a minute or so before he returned to his father and sat back in his father’s lap for a minute or two, then got up again. [B] maintained contact with her father by playing with him and making a point of showing him what she was doing at every stage. [The father] seemed to be quite proficient at sharing his attention between the children, and encouraging them to play together with him.

    After about 35 minutes I indicated that the time had come to finish the session. When [C] understood that they were going to be leaving, he walked over to his father unprompted and gave him a big hug. Although [B] did not do the same, she immediately became quiet, she looked a little bemused, and it took three or four minutes before she could be persuaded to follow me around to where her mother was.

21. The mother told Dr H that B had been very quiet after she returned to her mother. Dr H stated:

    [The mother’s] initial thoughts on this were that this was a form of negative response due to seeing her father, whereas I felt that the way it occurred it was more indicative of [B] being upset about the visit finishing. [The mother] also reported that her father had told her that [B] had soiled herself soon after leaving my office.

22. In relation to the interaction between the children and the father Dr H stated:

    Overall I formed the view that my observation session was consistent with the children generally having a good time with their father and that much of the time that they have spent in the past with their father has involved contented and quite relaxed interaction. I would note however that this does not exclude B having picked up some negative references to mother during the visits until March 2015 which she has reiterated in the immediate aftermath of change-backs. I also felt that another contributing factor to [B] being unsettled after change-backs may be that she has some awareness of tensions between the parents and of her mother’s anxieties about she and [C] spending time with their father.

23. Dr H stated:

    I also felt that the positive interaction between the children and their father after six months of no direct contact with him and only quite brief Facetime communication in the last two months was indicative of a previous quite good relationship. I was particularly surprised in the case of [C], bearing in mind that he had not had face-to-face contact with his father since just before his first birthday, and that children of his age usually make very little use of even dynamic visual communication modalities such as Facetime.

24. Dr H noted:

    Finally I noted that both subject children seemed to relate to him in a warm and positive way, he seemed to relate to them in an understanding and intuitive way, and he also managed [B’s] resistance quite patiently such that she came out of it very quickly and seemed to relate to him in a way which on the face of it did not suggest she holds a visceral fear of him.

    Overall this is consistent with him having good parenting capabilities, certainly probably sufficient for a visiting relationship with the children provided that there are not overriding concerns about ongoing substance abuse or a capacity to be very nasty and vindictive about the mother in front of the children.

25. It is not possible to discount the possibility that the father is capable of relating to the children in a warm and positive way and equally capable of behaving in the way that the mother alleges both towards her and towards the children. It would be consistent with his being intelligent and manipulative that he was able to maintain both behaviours.

26. Dr H stated:

    In the event that the Court takes the view that there is an unacceptable risk of harm in the father’s care, then an option open to the Court is to make orders for supervised contact. Were that to occur, it is my view that the children would probably cope quite well with this provided the supervision adequately protected them from the identified risks. There has been some continuity to their relationship with their father, albeit from a very young age, and recently only associated with Skype contact, but this should be a sufficient base on which to build a reasonable relationship under the circumstances of supervision.

27. In relation to the benefit of the children having a meaningful relationship with both of their parents Dr H stated “In general, children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future. It is my view that these principles apply in this case.”

28. Dr H recommended:

    If the Court largely accepts the mother’s allegations, then in my view there should be weekly supervised contact until [C] starts school, when two supervised days on alternate weekends could be introduced. Depending on the Court’s findings, sentinel drug and alcohol testing may also be necessary. Finally, a provision could be made for lifting supervision and extending the visits if there is verification of successful treatment and personality change. Depending on the Court’s findings, the supervision could be familial, professional or centre-based.

    In my view bearing in mind their ages, the children should not be separated for the purpose of visits with their father.

29. The best interests of these children fall to be determined pursuant to the framework set out in s60CC of the Family Law Act 1975 (Cth).

30. The primary consideration is the benefit to the children of having a meaningful relationship with both of their parents. The mother proposes that the children’s relationship with their father be confined to weekly electronic communication for the foreseeable future. It is submitted in her case, that there is a possibility that, on the final determination of these proceedings, an order will be made that there be no face-to-face time with the father.

1. It is difficult to envisage, having regard to the evidence of Dr H, as to the benefit to these children of a meaningful relationship with their father, that this will occur. I am conscious of the fact that the evidence of Dr H is untested and that the mother does not agree with his conclusions. However, taking her evidence at its highest, as to the behaviour and personality of the father, it is unlikely that the outcome of the final determination will be that the father spends no time with the children.

2. All of the risks that the mother outlines can be ameliorated by proper, professional supervision.

3. Counsel for the mother submitted that, if the only option available to the Court were an order for permanent supervision, then such an order would not be made. I do not accept that submission. An order for permanent supervision might be made if the Court determined that it was in the best interests of the children to maintain a relationship with their father, despite any defects in his parenting and personality. This may be such a case.

4. The mother’s position, that the children can maintain a relationship with their father through electronic media is not realistic. As is evidenced by her affidavit material, the Facetime contact is not pleasant for the children.

5. If it is the case that the father cannot restrain himself from making derogatory comments to the children about the mother, and in the presence of the mother, then his contact with the children needs to be supervised by someone other than the mother.

6. It is unlikely that the children can establish and maintain a meaningful relationship with their father using electronic media. If it is the case that the children’s time with their father needs to be permanently supervised, they will at least have an opportunity, during the supervised time, to establish some relationship with him.

7. Having regard to the father’s presentation in the interviews with Dr H, it is clear that the father is capable of presenting appropriately when he knows that he is being observed and reported. There is no reason to doubt that the father will behave appropriately with the children in the presence of the supervisor.

8. The presence of the supervisor will also protect the children from the possibility of psychological harm or verbal abuse caused by the father’s derogatory remarks.

9. The children are aged four years and two years. In so far as B has said in the past, as she did with Dr H, that she does not like her father or does not want to go to him, I do not consider that to be an expression of her views to which any weight could be given.

10. The children have the possibility of establishing a relationship with their father provided they are given the opportunity to do so. The have two half siblings, the children of the father’s new relationship, J aged nearly two years and K who is one year old. The children have never met their half siblings. If the children could establish a relationship with their half siblings, that must, in the long term, be a benefit to them.

11. The father has pursued opportunities to spend time with the children. The actions taken by the mother to limit the time which the father has been able to spend with the children are understandable in the light of her allegations about his behaviour.

12. The father has paid child support in accordance with assessments.

13. The orders which the father proposes will not effect a separation of the children from their mother for more than a short period. It is not suggested that they cannot separate from her, and Dr H’s observations of them would suggest that they will separate from her to go with their father.

14. The father has told the Court that he will meet the expense of supervision, for so long as the Court determines that supervision is necessary.

15. The mother raises serious concerns about the father’s ability to provide for the children’s emotional and psychological needs. Those concerns have not yet been tested but, for the purpose of making interim arrangements for the children, they need to be accepted. The children will be protected from the nature of the behaviour which the mother alleges, and the aspects of his personality of which she complains, by the presence of the supervisor. Indeed, the very aspect of his personality of which she complains, that he is manipulative, will be amenable to supervision as he can control his behaviour if he sees that, in so doing, there is a benefit to him.

16. I accept that the mother will be anxious about the children’s safety. Her fears should be ameliorated by the supervision reports that she will receive after each session and the short period of the visits.

17. The mother has raised allegations of family violence towards her. Those allegations are denied by the father and untested. However, the imposition of supervision is intended to address those allegations.

18. The Facetime contact with the father that has been occurring does not appear to be working and causes difficulties. It should cease.

19. The orders which will be put in place will remain until the Court is able to hear and determine the applications. They will provide the children a small window of opportunity to spend time with their father, and experience him as a father, in an environment which is safe for them. The time will not be increased as the father proposes. There is no evidence which suggests that the children would be comfortable with a longer period and a longer period may be difficult for the mother until she can be reassured that the children are safe. That reassurance may require a significant period of supervision reports.

20. The orders will provide for the mother to deliver the children at the beginning of the contact, and collect them at the end, so that they can move from her to the father, and back to her, in the presence of the supervisor, in the same way that Dr H facilitated the move from the mother to the father. It is not appropriate that the children should be collected from the mother’s home by a supervisor who is a stranger to them.  

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 30 September 2016.

Associate:

Date:  30/9/2016