W & G (Stage 3)
[2005] FamCA 617
•8 July 2005
[2005] FamCA 617
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. (P) BRF4570 of 2002
BETWEEN:
W
Applicant Father
AND:
G
Respondent Mother
EDITED REASONS FOR JUDGMENT FOR PUBLICATION
BEFORE THE HONOURABLE JUSTICE CARMODY
Dates of Hearing: 30 and 31 May and 1 June 2005.
Date of Judgment: 8 July 2005.
Appearances: Mr. Conrick of Counsel instructed by MacDonnells, Solicitors of 14/259 Queen Street, Brisbane, Qld, 4000, appeared on behalf of the FATHER.
Mr. Hamwood of Counsel instructed by Dianne M Edwards, Solicitor of PO Box 718, Cleveland, Qld. 4163, appeared on behalf of the MOTHER.
Mr. Linklater-Steele of Counsel instructed by Williams Lawyers of PO Box 340, Coorparoo, Qld. 4151 appeared on behalf of the CHILD's REPRESENTATIVE.
The issue
This is the third and final stage of a difficult contact-only case concerning the proposed reunion of a teenage girl and her biological father in circumstances where the resident mother is implacably opposed, the child herself is unsure and the father, a virtual stranger because of the length of separation, has since been replaced, for all practical purposes, by the mother's long-time de facto partner.
The matter raises general issues about the nature and extent of the court's supervisory role and the proper use of its parenting-related powers. It also involves a consideration of the practical content of the statutory concept of parental responsibility.
The context
The subject child is a 13 year old girl named R. She was born in 1992 when the mother was only 18 and the father 23. The parties' relationship was a short and stormy one. It ended in disputed circumstances within six weeks of the child's birth.[1]
[1]The mother claims that the applicant abducted R as an infant and violently assaulted her in the process. The father admits to taking the child to his sister's place for her own safety and welfare and that he slapped the mother to calm her down on the occasion in question. It is neither possible nor necessary for me to resolve this ancient dispute. Its only continuing relevance to the issues to be decided is that it helps to explain, at least in part, the mother's contact averse stance.
After an initial period of wrangling about who could and should be responsible for taking care of R, the mother obtained interim custody from the court in June 1992 on condition that she resided with her parents. No express provision was made for contact.
The applicant unsuccessfully tried to negotiate mutually agreeable contact terms a few months later. He filed, but did not pursue, a court application in September 1992.
The mother met and began cohabiting with her present partner at the end of 1992, that is, when R was about six months old.
A mediated agreement resulted in the father having two short supervised contact visits in 1993. However, those arrangements completely broke down due to parental conflict in October 1993. Consequently, the father has not seen his daughter since she was about 18 months old.
He made some failed attempts to locate her in the intervening 12 years through newspaper advertisements and periodic but rather perfunctory enquiries with government agencies.
The father concedes that until about 8 years ago he was not really in a position to develop or maintain any meaningful relationship with R because of an unsettled lifestyle involving homosexual liaisons, criminal activities and drug use.
His criminal history is long and varied. He was sentenced to 4.5 years' imprisonment in 1989 (at the age of 19) for assault and robbery. He was released on parole in 1990. He was back in custody for four months in 1991 for fraud. The mother was charged with a related offence but released without conviction because she was found to have been coerced by the father.
Between 1992 and 1996 the father appeared in court for stealing and drug related offences on five separate occasions. He was jailed for six months for dishonesty in 1994 and spent various periods in detention on drug charges and other matters in 1995. He has not been convicted or charged since then but he spent all of 1998 in a voluntary witness protection programme in connection with a major drug investigation.
Illicit drugs, including heroin and amphetamines, have been a prominent feature of the father's life dating back to his early teens. He claims to have stopped using intravenous drugs in 1997. There is no reason not to believe him on that score. However, he continues to take valium to calm his nerves and smokes marijuana on a nightly basis to maintain an appetite and help him cope with stress.
The father was diagnosed with hepatitis C in 1998 but is now symptom free. He was found to be HIV positive in 2001. His infection is chronic but manageable. It is not life endangering and, in the unanimous opinion of the medical experts, cannot be transmitted by normal social contact. His life expectancy is measured by his doctors in decades rather than years. His treating physician regards him as well informed and responsible about risk behaviour and minimisation in relation to his health. He has been a volunteer counsellor with an AIDS organisation since 2001.
The father lives in a shared flat. His last same sex relationship ended in 2004. He does not currently have a regular sexual partner.
The father has been a welfare recipient for most of the period of time since separation. He was unemployed for nine years from 1987 and did not file a tax return until he obtained his present job as a permanent part-time hospital cleaner in 1997/1998. His employment related taxable income for the last financial year was $20,000.00. His weekly expenditure includes $50.00 on marijuana and $20.00 for cigarettes.
He paid no regular child support until 2000 when the Child Support Agency began automatically deducting $10.00 a fortnight from his pension payments. He was released from $3,234.00 in child support arrears in 2001. However, he says that he intends to leave his superannuation benefits to R when he dies to make up for his failure to financially assist her in the past.
R grew up believing that the mother’s partner was her natural father. The mother admits removing all traces of the applicant's part of the family history in the interests of unity and stability. Until last year R thought that her stepfather's blood ran through her veins and that she and her sisters sprang from the same genetic pool. She now knows that that is a misconception deliberately implanted in her mind by the mother. This is something the three of them are going to have to resolve at some point.
The father's application for contact orders was filed in July 2002. He says that he is now ready, willing and able to establish and maintain a worthwhile relationship with his daughter to the extent that doing so is consistent with her own wishes and overall best interests.
In May 2004 I made an order compelling the mother to inform the child of her heritage because of the need to safeguard her from an even greater emotional and psychological disturbance in the likely event of accidental discovery. This was done in September 2004 with the help of Ms M, a trained social worker and court counsellor.
The proposals and recommendations
The mother seeks the dismissal of the father's application and a no contact order except, perhaps, a one-off letter of introduction and photograph.
The father proposes preliminary contact by letter, followed by short periods of supervised contact no more than once every two months as recommended or advised by the Child's Representative or Court Counsellor. He does not seek to share parental responsibility or to exercise any parental power or authority which, by law, he may technically have over her.
Ms. M, Dr. M and the child representative all favour an initial short contact visit under the supervision of a child counsellor to allow R to meet and form her own opinions about her father, with any ongoing contact to be left up to R.
Dr. M rejects the "do nothing" approach suggested by the mother. She thinks that simply leaving it up to R to self-initiate is the least preferable option and, unless she was genuinely and strongly resistant, is probably contrary to her best interests.
Dr. M was of the view that it was better for the court to adjudicate on contact rather than leave it to R’s discretion. According to Dr. M, R would not realistically be able to choose or initiate contact. She should be relieved from the pressure of having to decide.
The family reporter recommends an introductory meeting, followed by, if both the father and R want it, monthly supervised and counsellor-assisted contact for at least a year before progressing to unsupervised arrangements, depending on the strength of the father's commitment and R’s own wishes.
The legal policy and principles
The answer to the vexing questions at the heart of this matter lies in the inter-related provisions governing the court's power to make parenting orders in Pt VII of the Family Law Act, 1975. The role, relationship and significance of these sections are discussed in a detailed and authoritative way in the leading decision of the Full Court in B and B: Family Law Reform Act, 1995. [2]
[2] (1997) FLC 92-755.
It is clear that in deciding what, if any, parenting order to make in an application the court must act with the aim of achieving the dual goal stated in s 60B(1). That is, to ensure that children receive adequate and proper parenting to help them achieve their full potential and that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. The basic "right" of children, recognised in s 60B(2), to know and have regular contact with both parents must also be given practical expression wherever possible. However, the right is not an absolute one.
The interests of the parent seeking or opposing contact are not to be ignored but they are not decisive. The best interests of the child is the consideration of paramount importance.
The diverse yet often closely related matters which the court must consider in determining the best interests of a child caught up in family litigation are listed in pars (a) - (l) of s 68F(2). They are mandatory considerations but they do not purport to be either exclusive or exhaustive. No one factor has primacy or takes precedence over any other. Their relevance, comparative significance and relative weight depend on the particular circumstances and the demands of individual justice.
It is important to remember, however, that best interests are values not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions on the same body of evidence. They necessarily involve predictions and assumptions about the future which are not susceptible to scientific demonstration or conclusive proof. Predictions, and even intuition and guesswork, can all play a part in the making of a parenting order. There is no single or simple answer and there is always a real chance, despite best efforts and the search of the best interests solution, of getting it wrong.[3]
[3] cf. CDJ v VAJ (1998) FLC 92-828 at 85,458 (High Court of Australia).
Decisions involve a process of balancing different factors and weighing the advantages and disadvantages of each proposal and other options.[4] This includes contact versus no contact and whether to accept or go against the wishes of a child or views of the residence parent.
[4] U v U (2002) 211 CLR 238.
The decided cases
In Lister v Lister[5], a mother deserted her husband and children in favour of another man and had virtually no contact with her three children for 7 years. Despite the disreputable rule of ecclesiastical matrimonial law that a contact order should not be granted to an adulterous wife having been long since abandoned,[6] the mother was refused access to the youngest son because it was held that, if and when there was any appropriate time for resumption of the relationship, it was not in the best interests of the child to do it then.
[5] (1967) 11 FLR 93.
[6] Dickey A, Family Law, 4th Ed, Lawbook Co, Sydney, 2002 at 449.
Jenkyn J found that the child really only remembered the applicant as someone who had walked out of his life and who had carved out a new life for herself which he could hardly be expected to approve of because of his Catholic upbringing.
However, his Honour expressed the hope that when the child reached adulthood and could view his mother's conduct with a mature mind he might be able to resume contact with her without embarrassment, and that the only kind of access which had any real value to either the child or the mother was one stemming from the child's own decision, at some later stage, to reconnect.
In N and H [7] access was denied to a transsexual father who had separated from the child's mother before the child's birth and thereafter lived and dressed as a woman. The father had never truly performed the role of parent and, indeed, was known to the child as his aunt. The Full Court regarded the father as being, in effect, a non-parent and in light of the difficult circumstances of the case concluded that it would not be in the best interests of the child for the father to have further contact with him.
[7] (1982) FLC 91-267.
The application of an AIDS infected homosexual father for short supervised access with a 3 year old child failed in The Marriage of B and C [8].
[8] (1989) FLC 92-043.
The mother was extremely protective of the child and opposed the contact on the grounds of the father's lack of post-separation contact, his health, and the ostracism that the child might experience if he associated with the father because of his condition. The child actually thought his father was dead.
The application was refused because it was sought by the father for his own rather than the child's benefit. His life would have meaning and he would die a happier man if he had the affection of his son.
Although the court accepted that the chance of the child catching AIDS from the father was extremely remote (and that as a possibility it played no part in the court's decision), the mother held a different view which, in spite of overwhelming medical evidence to the contrary, was not an unreasonable one given what she had read.
The court adopted the approach that it was not its role to change unreasonable community superstition or to educate the public. It was only concerned with the welfare of the particular child.
Contact would have aggravated the mother's already considerable anxiety and exacerbated the resentment she felt regarding the marital history, the father's sexuality, and increased her fears of the child being at risk of being affected by HIV. The mother's reaction to contact would have unsettled the child and reduced the quality of care she could provide as a parent.
Smithers J also held that it would be undesirable to put the child at risk in relation to his social life with friends and relations. The child would have had to cope with the re-emergence in his life of a father with whom he had no relationship and who might die within two years. The long and short term benefits of contact and the father's interest in resuming a relationship were found to be outweighed by the risk that contact would set back his development.
In L and L [9], Baker J held that among the matters a court should take into account under s 68F(2)(l) in determining the application of a homosexual parent for contact relevantly include, whether the child is likely herself to become homosexual, be stigmatised by peer groups if the parent's sexual orientation becomes known in the community, and the applicant's attitude to religion, particularly if the doctrines, tenets and beliefs of the child's church are opposed to homosexuality. In Doyle and Doyle, by contrast,[10] Hannon J ruled that a parent's lifestyle or sexual preference is irrelevant unless it affects parenting ability or the welfare of the child in some relevant way.
[9] (1983) FLC 91-353.
[10](1992) FLC 92-286.
The community is filled with a diversity of lifestyles and values. It is appropriate to acknowledge and respect even the most unconventional of them but it is not a judge's function to promote any particular set of standards or moral values. Activities or attitudes that deviate from the social norm do not automatically disqualify a party from contact if they are within the broad range of standards accepted or tolerated by the community in general but, again, it all depends on the child's welfare based rights and needs. It is possible for a non-conformist parent to combine unorthodox actions or views with a meaningful parent-child relationship.
What is contact for?
Australian family law is unashamedly pro-contact. Consequently, this court will bend over backwards to establish or preserve a worthwhile relationship with the poorest of parents provided adequate protective measures can be put in place to prevent any relevant risks. This approach is based on the assumption that a father is much more than the worst thing he has ever done[11]
[11] John Kani, playwright.
Historically, an unmarried father who abandoned his illegitimate child had no parental rights unless an order was made granting him some[12] but these days a child's psychological identity is recognised as an important consideration not to be interfered with lightly[13] and parental responsibility is seen as a shared obligation irrespective of the nature of the relationship of the parents with each other, another person, or even the subject child.
[12] Re B(a minor abduction) (1994) 2 FLR 249.
[13] cf. B and B: Family Law Reform Act, 1995 (1997) FLC 92-755 at 84, 215.
Thus, in the modern world, the father of an ex-nuptial child is treated no differently from any other father.
The starting point when contact is in issue is that there is a benefit for children in having a meaningful relationship with both of their parents and that for most children contact with a non-resident parent is important to their welfare and development in both the short and long term.
In 2000 two eminent psychiatrists prepared an expert report for the English Court of Appeal on the psychiatric principles of contact between children and non-resident parents. The document was rigorously reviewed and approved by the authors' peers and incorporated the views of a distinguished group of consultants. The court relied on their opinions in Re: L (A Child)[14], a contact matter involving family violence.
[14] [2001] Fam LR 267.
Aside from their discussion of the specific issues in the case, the authors effectively provided a general account of the purpose of child contact and spelt out what risks and benefits normally attach to direct and indirect contact with a non-residential parent.[15]
[15]See Sturge and D Glaser, 'Contact and Domestic Violence - The Experts' Report' [2000] Fam Law 615.
The report described the centrality of the child as all important and the promotion of his or her mental health as the central issue amid the tensions surrounding the adults in dispute. It explained that decisions about contact should be child-centred and related to the specific child in its present circumstances but acknowledged that the child's needs will alter over different stages of development. The underlying purpose of the proposed contact they said must be overt and abundantly clear and have the potential for benefiting the child in some way.
The psychiatrists identified the different functions of contact as including: the sharing of information and knowledge; curiosity is healthy; sense of origin and roots contribute to the sense of identity which is also important as a part of self-esteem; maintaining meaningful and beneficial relationships (or forming and building up relationships which have the potential for benefiting the child); reparation of broken or problematic relationships; opportunities for reality testing for the child - children need to balance reality versus fantasy and idealisation versus denigration; facilitating the assessment of the quality of the relationship or contact (most relevant where a return to a particular parent is being considered) and severing relationship, for example, goodbye meetings.
The benefits of contact to a father as distinct from a mother were acknowledged and set out in detail, including his importance as one of the two parents, the child's sense of identity and value, the role model provided by a male and its relevance to the child's perception of family life as an adult.
They also highlighted a number of potential risks of direct contact. The overall risk was that of failing to meet and actually undermining the child's developmental needs or even causing emotional abuses and damage directly through contact or as a consequence of the contact. Specifically that included escalating the climate of conflict around the child which would undermine the child's general stability and sense of emotional well-being. The result was a tug of loyalty and a sense of responsibility for the conflict in all children except young babies which affected the relationships of the child with both parents. There might be direct abusive experiences, including emotional abuse by denigration of the child or the child's resident carer. There might be a continuation of unhealthy relationships, such as dominant or bullying relationships, those created by fear, bribes or emotional blackmail, by undermining the child's sense of stability and continuity, by deliberately or inadvertently setting different moral standards or standards of behaviour, by little interest in the child himself, or by unstimulating or uninteresting contact.
Other emotional abuse of contact includes situations where the real motivation for it is to satisfy the need of the contact parent, for example, to get at the other parent or maintain a link with him or her, and is not motivated by positive feelings for the child and a genuine wish for a healthy relationship with him or her.
The report noted that where there is an absence of a bond between the child and the parent with whom he or she does not live the following need to be taken into account: the age and developmental level of the child; the seeking of a clear and separate identity may lead to a greater interest in a little known biological parent by an adolescent child; the introduction of contact may, at the same time, because of the adolescents' seeking of independence, add complications with undermine the "main" placement (for example, expressing a wish or leaving to live with the non-resident parent as an act of defiance towards the resident parent and his or her controls).
However, lack of such a bond is not in itself a sufficient reason to try to build a new relationship. There is a wealth of evidence about the adverse effects on a child of long term parental separation but different considerations may also come into play, such as other emotional investments of the child, for example, in a step-parent, and what the new relationship might add to the child's life and well-being. In the event that there is no meaningful relationship between the child and the non-residential parent, and opposition to contact by the resident parent, there would need to be a very good reason to embark on a plan of reinstating direct contact and building up a relationship that might be of little value or, worse still, positively harmful, such as in the case of an established history or persistent pattern of domestic violence.
Some children can overcome resistance to contact or anxieties about seeing an unknown parent if able to see them in a safe situation in which they are in control or assisted by a trained person.
The existence of hostility between the parent with the care of the child or his or her partner, on the one hand, and the parent seeking contact, on the other, that is likely to be heightened by contact with resulting detrimental consequences for the child is a relevant consideration but one vested interest should not be allowed to override the interests of the child. [16] Neither parent should be encouraged or allowed to think that the more intransigent, the more unreasonable, the more obdurate and the more unco-operative they are, the more likely they are to get their own way.[17]
[16] T and N [1981] Fam LR 50 at 56.
[17] Re: O (Contact :Imposition of conditions) [1995] 2 FLR 124 at 129-30.
Thus, contact will rarely be wholly negative. There will usually be some practical advantage in it for the child. Except in relation to child abuse and family violence, the court's attitude to parental misconduct and the like is less rigid now than it used to be. Considerations of guilt and moral blame have lost their place in the resolution of contemporary family law problems because they are generally inconsistent with that principle. The essential issue is what is best for the child not what is justice to an "innocent parent". The child's overall welfare is the dominant concern and in this regard the conduct itself (especially an aging or isolated incident) will often be less significant than the consequences it causes. Even in the context of abuse or violence it can provide the opportunity for reconciling differences, repairing and restoring faith in a damaged relationship.
There are exceptional cases, however, where contact may do more overall harm than good and it is necessary or appropriate to terminate it altogether. This might occur, for instance, where there is little chance of changing an implacable situation, where contact confuses or distresses the child, is perceived to be invalidating painful recollections, or causing emotional disturbance.
Contact is sometimes refused where the applicant seeking it is unknown to the child because of a long separation, particularly where, as here, the residence parent's partner has substituted for the absent parent, or when introducing him or her into the child's life is likely to be too disturbing. The cause of the absence, as distinct from its effects on the child, may often be of marginal relevance, although it will be pertinent if it indicates the true level of concern the absent parent has for the child.
Other factors which might, either alone or in combination, result in a no contact order include a chronic high level of inter-personal conflicts; strongly held contradictory values and beliefs between parents, drug use, family violence or child abuse; and where the stress of contact poses a serious threat to the healthy functioning of the re-formed family of which the custodial parent and the subject child are members.
The best interests solution
The key question here is whether the court should make any and, if so, what contact order in R’s overall best interests.
Although there is no presumption in favour of the so-called "status quo", the likely effect of any change in a child's current circumstances and the nature of the relationship existing between the child and each of her parents and other persons, such as her stepfather and half-sisters, are relevant and important factors.
There is a general common-sense view that if a child's situation is settled and she is doing satisfactorily it is sensible to be cautious about changing it unless there are good reasons for doing so. In other words, it may be better to leave well enough alone rather than take a risk in trying to improve things.
The mother and her partner live on the Gold Coast and have three other children: RB aged nine, SV aged two-and-a-half, and SK aged 14 months. R has lived with them all her life. She lives in a stable and safe household where she has firmly established and close-knit relationships with all other members of the only family she has ever known.
R is loved and well-cared for by two deeply devoted, highly responsible and competent, and fiercely protective parents. She loves and respects them. They have done a commendable job in raising her. This is her first year of high school. She is currently doing well academically and is mature for her age. She is a member of a fundamentalist apostolic faith and attends weekly church services.[18] A psychiatrist retained by the mother, Dr. S describes religion as part of R’s identity and her social and schooling network. She is happy and contented and has a strong bond with her half-sisters. However, to date, only the 9 year old sister has been told the news about the emergence of R’s natural father. Initially RB refused to believe it but it does not appear to have damaged or weakened the sibling relationship - at least not yet.
[18]Neither of the parties nor the mother’s partner belong to any established religion but hold basic Christian beliefs.
The mother is totally against the proposed reunion and is deeply suspicious of the father's motives. She argues that the father's application indicates a failure on his part to identify and separate his own interests and needs from R’s. She says allowing any contact at all would jeopardise the child's emotional welfare by upsetting her family relationships and exposing her to the influence of the father's unconventional morality and would undermine her own ethical standards and religious convictions. She does not trust the father because he did not disclose the full details of his criminal record or HIV positive status in his initial material and overstated the attempts he made to locate R over the years. She doubts that he has truly reformed and does not believe that he is capable of playing any positive role in R’s life. She regards him as a serious health risk and sees him as a morally repugnant person. As far as she is concerned he does not deserve another chance at parenting. She also notes that the father showed no interest in reconnecting with his daughter until after he had been discharged from his accumulated child support liability and been diagnosed as HIV positive.
The father's application for contact has severely disrupted the family unit and permanently changed its dynamics.
The mother and stepfather understandably see the litigation and the potential contact between R and her father as anathema to the proper functioning of their family unit.
They are clearly frustrated by the legal process and are upset about the court's intervention and the ongoing intrusion into their daily lives the protracted proceedings have caused. It has been a costly and emotionally draining experience for them.
Their attitude is that the court should not interfere in their family affairs. They say that the question of whether and when contact should occur is a matter properly left to R to decide under their guidance and influence.
In their minds the theoretical benefits of contact are outweighed by the real risks to her physical and psychological health and emotional well-being, the challenge to her religious beliefs and moral standards and the disruption of her home, social and school life. They also suggest that ordering contact would substantially impair their parenting capacity.
These are all valid and relevant matters to be considered but only insofar as they relate to doing what is best for R.
Quite apart from these concerns, the fact is that R has no relationship at all with the father. All she knows about him is what she has been told by the mother.
The father has no proven parental capacity. He has no experience of making child-centred decisions. He would, in my assessment, have great difficulty in relating to a deeply religious adolescent and emotionally confused teenager. It was clear from his oral evidence that he lacks the personal resources to adequately manage a reintroduction on his own. He has no strategy in place for dealing with a host of questions that are likely to arise on contact.
His responses to questions under cross-examination revealed a rather egocentric mindset. He is firmly fixed on correcting the record and counteracting the mother's negativity. He would not be able to adequately emotionally support R or help her cope with the emotional price of contact.
Counsel on all sides agree that R’s wishes, though not conclusive, must be listened to and taken seriously. They are to be given appropriate weight having regard to her age and level of maturity. However, they disagree about what those wishes are, what they are based on, and how strongly held they are. Dr. M considered respecting R’s true wishes as paramount.
It is clear from all reports that R was relieved when she was told the truth about her biological heritage in September 2004. She wished she had been told earlier. It confirmed her own suspicions.
However, her attitude to actual contact has changed over time. Ms. M says that when R was first told she was adamant that she wanted to meet her father so that "it won't be such a mystery".
By the time of the second session in October 2004, R had been informed of the negative aspects of her father's history. She had been told, for instance, that he was HIV positive and had been in gaol for drug use. Her mother had informed her that the father was only paying $5.00 a week in child support but R was hopeful that he pay more after they met. The stepfather had told R that he does not trust the father and "if he meets you he might come and take you away".
In spite of this R remained non-judgmental and objective. She told Ms. M that people can change and that, while her parents were entitled to their point of view, so was she.
R confidently expressed her feelings and wishes both to Ms. M and her parents.
She impressed Ms. M as being remarkably mature for her age, with a high level of emotional intelligence and positive self-esteem. She valued others and accepted differences.
Ms. M expressed the opinion that R was coping well and has the capacity to "positively manage identity related issues" and recommended that significant weight be given to R’s wishes.
The family reporter, who last saw R in November 2004, reported that R had accepted the information about her paternity without distress. She presented as gradually working through the implications and asking relevant questions of her parents and trusted friends. At that stage R was curious and determined to find out as much information as she could about her father and his health.
The family reporter deposed (at par 84) that forming a secure and positive identity is one of the "crucial tasks" adolescents have to complete.
R told her that she would like to meet her father. She appeared to have given the matter a great deal of thought and the family reporter thought her expressed wish reflected a considered opinion. However, she was clearly worried about the prospect of committing herself to regular contact. She preferred to leave that question to the court to decide. She did not want to bear the burden of this decision and trusted the court to do it for her.
R was even more resistant to contact when she saw Dr. M about 6 months ago.
She told Dr. M that "she imagined that her father was a strange person". She said she had been told by the mother that he had taken her away and was a bad person and that he had hate and love tattooed on his knuckles. She knew he was HIV positive, which she believed he got from "syringes or unsafe sex with another guy". She felt that this was wrong.
She stated that she would feel upset if she did not get to know him before he died but said a photograph would help her to see what he looks like but she does not want any contact. She would prefer to have a letter from him to having contact.
R said it was much better in the family before she knew. They were all happy. She thinks that her stepfather feels left out and that he should have more of a say.
R told Dr. M (at p 4) that she was sick of the investigations and court procedures. She said that she did not want to see the father because of what he had done to her mother and the effect of it upon the family. She suggested that the father is thinking of himself more than her in making the application.
Dr. M attributed this to the influence of the mother and stepfather's negative views.
Her impression was that R’s isolated view is that she probably did want to see her father but was deferring to her mother and stepfather's opposition.
Dr. S, who prepared a psychiatric report for the mother without having seen either of the parties or the child, expressed the initial view that contact be delayed until she was 16, "when there has been identity formation and so maturity to assimilate the different value systems of her biological parents". But it is difficult to see how there could be any valid identity formation her without knowing her biological father.
However, in cross-examination Dr. S agreed that Dr. M’s solution was a reasonable one in the circumstances and that her report suffered the disadvantage of being prepared before R had been told of her paternity and was done without the benefit of having seen any of the affected parties.
There is no doubt in my mind that R is torn between what she wants and her parents' views. She is a respectful and compliant child with a people-pleasing personality. Her wishes are clearly influenced by what her mother and stepfather think. She is obviously dependent for both developmental and emotional reasons on her parents and appears to be reflecting their views in order to maintain her sense of place within that household.
It is likely that the family pressure on R not to develop a relationship with her father or have ongoing contact with him is likely to intensify rather than abate and over time it will become intolerable for her.
There is an obvious risk that R’s relationship with her sisters may be adversely affected by regular contact and a concern that they may treat her differently once they know that she is not their full sister. The father's sexual orientation and HIV status may also cause social pressure and possible shunning among peers in a conservative school or church environment and may affect her social interactions. The mother says that this has already occurred. R’s academic performance may even suffer but there is no sign that it definitely will.
As well as aggravating existing tensions in the mother's household, regular contact could also open R up to different lifestyle views, attitudes, moral standards and lifestyle choices. It may even encourage rebelliousness, resentment and confusion. A risk (remote in my assessment) also exists that the mother may reject R if she forms a positive view of the father.
There is some expert evidence from Dr. M that the mother may be affected in her capacity to care for R and the family as a whole if contact is allowed. She said in oral testimony that contact would pre-occupy the mother's attention and may have an adverse impact on R’s happiness.
I accept that the risk of poorer parenting would be a substantial one if orders for standard or ongoing contact were made. However, I am satisfied that the mother would cope with some short supervised contact for R’s sake.
Dismissing the father's application would ensure peace on the home-front but deprive R of the opportunity of developing a meaningful relationship with her biological father. But it would mean that she would retain a wholly negative image of him without ever having had the benefit of reality testing or resolving any outstanding issues she has with the father.
Denying contact could create as much disruption and tension within the family as granting it. R was likely to resent her parents in later years if it was denied but feel guilty if she has contact contrary to their strongly held views.
Most importantly, she would, as Dr. M noted in par 7 on page 9 of her report, not be able to establish her own identity.
As the family reporter points out at par 110 of her final family report, R "will need to know the truth if she is to have a complete knowledge and identity" and, at par 98, for R to "have a balanced view, she needs to hear 'both sides of the story'. Having contact with (the father) allows her to hear his version".
R has a right to know and have contact with her father.
I am reasonably satisfied that she wants to meet him. Even if she doesn't, she has an emotional and developmental need to establish her own identity and address unresolved issues about her parentage. She cannot do that adequately without physical contact. I don't accept the submission of the mother’s Counsel that the need to know does not mean that R needs to meet her father. I think that Counsel for the father was closer to the mark in saying that there is more to knowing a person than being aware of his or her existence. For R to "know" her father in the relevant statutory sense I believe that she needs to meet him and have the opportunity to get to know him, that is, meet him.
I accept the expert opinions that contact with the father may have the benefit of allaying R’s adverse views of him and permitting her to test reality and address issues with him. The probability is that this would help her to establish her own psychological sense of self and her place in the world which, as the professional witnesses all agree, is one of the developmental tasks of adolescence.
Contact will affirm her biological roots and have the advantage of providing the opportunity for satisfying R’s natural curiosity and help her decide whether or not she wants to develop a relationship with the applicant.
It might also reassure her about the existence and well-being of birth relatives; provide an understanding of personal and family history and her father's background; and maintain a flow of communication which could facilitate future contact.
R is old and mature enough to determine for herself what sort of relationship, if any, she wants to develop with her natural father and how much future involvement, if any, she wants him to have in her life. But her current views about that are based on inadequate, outdated and probably misleading information.
The parents justify imparting unfavourable information about the father to their daughter on the grounds of frankness and truthfulness. They claim to have every right as R’s parents to try to persuade her against the development of a relationship with the father because he has nothing good to offer.
Admittedly, one of the responsibilities and duties of parenthood is to provide, consistently with the rights and evolving capacities of the child, the information, direction and guidance needed to express relevant wishes and make appropriate choices.
But by telling R all about the father's perceived faults and character flaws at such an early stage (against the advice of their own expert), the parents have done their best to demonise the father and sabotage his proposed reintroduction into R’s life. This shows a lack of objectivity and a serious lapse of parental judgment. It was not child focused even if it was intended to protect. It has put a lot of pressure on R to forgo her own rights, interests and needs in deference to those of others. This action was clearly calculated. It may have short-lived tactical benefits but could also have equal or worse long term detriments.
R has to be given the opportunity to acquire the knowledge needed to form her own impressions and choose her consequences. To the extent that the mother and stepfather cannot, or will not, permit this, the court must intervene for the sake of the child and facilitate a meeting with her father under controlled conditions.
I do not think that R’s acknowledged right, established need and probable wish to know (and meet) her father is over-ridden by any other countervailing best interests factor. The chance of infection is low. The fact that only 1,100 or so people within the state are HIV positive makes it unlikely that the disease can be transmitted through casual contact. Accordingly, despite the mother's genuine and arguably reasonable belief to the contrary, the father is not an unacceptable health risk. Nor, in my opinion, does he represent any unmanageable threat to the moral welfare of the child or her emotional development. Any risk in either regard can be adequately met by a supervision provision.
Although cost and distance are factors, there is no real practical impediment either in terms of cost or distance to supervised contact at the contact centre proposed by the father. It is proximate to the mother's residential address and will involve little inconvenience and no cost to them if the father is ordered to do the travelling and meet any expenses.
I am satisfied that the long term advantages of a period of short, court ordered, supervised contact outweighs any short term disadvantages. A contact order should be made here because it would be better for the child than not making one. Making no orders and leaving the question of contact for R to initiate if and when she wants to would not alleviate the anxieties of the mother's household but might create the potential for contact to take place under uncontrolled conditions.
If R never has contact with her father, and I don't think she ever will if left to her own devices, she will be left in a position where her view will be the product of the prejudicial judgment of others and many questions arising naturally from the disclosure of her parentage will remain unanswered. This is not likely to be in her long term best interests.
However, I do not think that court intervention beyond facilitating an initial contact is justified. Regular contact would be problematic. It involves the risks identified in pars 100-105 above and, in any event, not every matter in issue between disputing parents can or should be regulated. Judicial interference in the performance of an aspect of parental responsibility should occur only as a last resort or where the welfare of the child will clearly be advanced by the order being made.[19]
[19] VR and RR [2002] FamCA 320.
Finally, I am not persuaded that this is an appropriate case for the granting of a permanent injunction against the father. He has so far demonstrated a commendable level of restraint and patience. There is no hint of any intention to self-help or put R’s welfare at risk by trying to circumvent my findings. Nor is there any reason to suspect that he would not honour a formal undertaking which, of course, is equivalent to, and involves the same sanctions as, an order of the court.
Accordingly, I propose to make orders along the lines of those proposed by the Child's Representative on condition that the father first files an undertaking not to attempt to have or initiate any other form of direct or indirect contact until R’s 18th birthday unless earlier excused by the court.
The orders
(1)That the child, R, born 9 November 1992 ("the child") have physical contact with the FATHER on a date agreed between the parties or, failing agreement, as directed by the Director of Mediation of the Brisbane Registry of the Family Court.
(2)That the contact in paragraph (1) occur at a contact centre and not exceed 2 hours' duration.
(3)That the FATHER meet all costs of contact.
(4)That pursuant to section 65L of the Family Law Act, 1975 the contact in paragraph (1) and the other provisions of this Order be supervised by a Family and Child Mediator ("the Court Mediator"), other than Ms M or the family reporter, appointed by the Director of Court Mediation at the Brisbane Registry.
(5)That the Court Mediator give to any party and to the child such assistance in relation to the compliance with and carrying out of this Order as is reasonably requested or required by them.
(6)That the MOTHER cause the child to attend at such places and at such times as is requested by the Court Mediator to facilitate the contact.
(7)That the FATHER be at liberty to deliver a letter and photograph of himself to the Director of Court Mediation at least 5 weeks prior to the contact date.
(8)That the Director of Court Mediation arrange for the child to meet the Court Mediator and receive and discuss any letter and photograph received from the FATHER at least 3 weeks prior to contact.
(9)That in order to assist the child with any issues she may have as a result of these arrangements, the MOTHER in consultation with the Court Mediator take all steps necessary for the child to attend a private therapeutic counsellor and the FATHER take all necessary steps to meet any related costs.
(10)That the Court Mediator be at liberty to list this matter for further directions before his Honour Justice Carmody on the giving of 7 days' written notice.
(11)That in the event that the matter is to be re-listed the Court Mediator provide the Court with a report on relevant matters, including the child's wishes in relation to future contact, pursuant to section 62G of the Family Law Act, 1975.
(12)That the counselling for the child is to be confidential and no report is to be requested from the mediator by either party.
(13)That otherwise contact between the child and the FATHER occur only at the instigation of the child and to facilitate this until the child's 18th birthday the FATHER keep the Court Mediator informed of his current residential address and contact telephone number and the Court Mediator provide the child with a point of contact at all times.
(14)That in the event that the child contacts the Court Mediator she is to be provided with the Father's contact details as referred to in paragraph (13) if requested.
(15)That the Court Mediator explain the Orders and the Reasons for Judgment to the child.
(16)That pursuant to Section 65DA(2) 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 are set out in Annexure A and these particulars will be included in the order that issues.
I certify that the preceding 125 paragraphs
are a true copy of the Reasons for Judgment
herein of the Honourable Justice Carmody.
………………………………….
Associate
Date: 8 July 2005.
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