Waterford & Waterford
[2013] FamCA 33
•31 January 2013
FAMILY COURT OF AUSTRALIA
| WATERFORD & WATERFORD | [2013] FamCA 33 |
| FAMILY LAW – CHILDREN – BEST INTERESTS – Common ground that children live with father – Question as to children’s best interests in spending time with and or communicating with mother – Meaningful relationship children and mother – Long history of mother and children spending supervised time at a contact centre – Evidence accepted that such now not continue as not in children’s best interests – Evidence accepted that unsupervised time with mother on alternate weekends holidays and special days not in children’s best interests – Mother not seeking telephone communication – Orders as submitted by father as added to and modified by independent children’s lawyer determined to be in children’s best interests – Such orders pronounced with stylistic but not substantive changes |
| Family Law Act 1975 (Cth) s. 4, 60CC, 60DA, 61D, 61DA(1), (2) and (4), 61C(1) and (3) |
| G & C [2006] FamCA 994 Mazorski & Albright [2007] 37 FamLR 518 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Ms Waterford |
| RESPONDENT: | Mr Waterford |
| FILE NUMBER: | BRC | 11623 | of | 2010 |
| DATE DELIVERED: | 31 January 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 19 and 20 November 2012 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Linklater-Steele |
| SOLICITOR FOR THE RESPONDENT: | DA Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Pendergast |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Chan Legal Aid Queensland |
Orders
IT IS ORDERED
Parental responsibility
The father have sole parental responsibility for the children O born … January 2004 and L born … February 2005 and keep the mother informed as to any decisions he makes concerning them which relate to:
a. education
b. medical and allied health and
c. any other matter affecting the children’s long-term care welfare and development.
Living arrangements – children to live with the father
The children live with the father.
The children and the mother
In the event that either of the children should express a desire to contact the mother or spend time with the mother, and/or the mother and B born … April 2008, the father must use his best endeavours to facilitate such.
The mother may send to the children, via a PO Box address nominated by the father to her (which he must nominate to her in writing within 7 days of the date of these orders) cards letters and gifts:
a.on 1 occasion in each calendar month
b.on each of the children’s birthdays and
c.at Christmas.
The father must collect such cards letters and gifts, give them to the children, encourage them to open and read any cards and letters and ensure that any gifts including any photographs are kept by the children.
Information
The father must send to the mother letters keeping her informed as to the children’s education health welfare and development and any other significant events in their lives within 7 days from the date of these orders and subsequently at least once in each calendar month, in the first week of such.
The father must send to the mother from time to time photographs of the children.
The father must keep the mother informed of:
a.any illness or injury occurring to the children or either of them that requires medical attention
b.the names and addresses of any medical practitioners, allied health practitioners including counsellors, clinics or hospitals involved in treating or caring for the children
c.the names and addresses of the school/s the children attend.
In the case of any emergency concerning the children or either of them the father immediately must notify the mother of such and provide her with all information known to him as to the child’s or children’s condition diagnosis and recommended treatment.
The father and the mother must notify each other within 7 days from the date of these orders a mobile telephone number for the purpose of communication in the case of any emergency.
The father must authorise any medical practitioners, allied health practitioners including counsellors, clinics or hospitals involved in treating or caring for the children to provide to the mother at her request and expense information or any prepared reports concerning the children provided that this order is sufficient authorisation to do so.
The father must authorise the children’s school/s to provide to the mother at her request and expense information concerning the children, copies of school reports, school photographs and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.
Method of communication father to mother
All information concerning the children to be provided by the father to the mother pursuant to these orders be sent by letter by registered post addressed to her at her address last known to the father.
Non denigration
The parties must not denigrate each other or permit other persons to do so in the hearing or presence of the children by, if necessary, removing the children from the hearing or presence of any such persons.
All prior parenting orders discharged
All prior parenting orders concerning the children are discharged.
All applications concerning the children otherwise are dismissed
All applications concerning the children otherwise are dismissed.
Independent children’s lawyer discharged
The independent children’s lawyer is discharged.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Waterford & Waterford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC11623/2010
| Ms Waterford |
Applicant
And
| Mr Waterford |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings concern the children O born in January 2004 9 years and L born in February 2005 nearly 8 years (the children).
The children’s parents Ms Waterford (the mother) and Mr Waterford (the father) have competing applications concerning parenting orders for them.
The proceedings were commenced by Ms Y (the maternal grandmother) by initiating application filed 10 December 2010, subsequently the subject of a notice of discontinuance filed 2 November 2011.
By that stage the father, the then named first respondent, had filed a response on 16 February 2011 and the mother, the then named second respondent, had filed a response on 6 July 2011, with effect that the proceedings were able to be continued, the mother subsequently being regarded as the applicant and the father the respondent. (See the change in the title of the matter on and from the order made by Registrar Stoneham on 14 February 2012).
Earlier proceedings
These are the third proceedings concerning the children.
The first, BRF3643/2005, resulted in final consent orders made by Barry J on 1 October 2008.
The second, BRC9916/2007, resulted in an order made on 16 March 2010 by Purdon-Sully FM effecting a variation to the final consent orders made on 1 October 2008 by Barry J (and other orders not presently relevant). (Curiously, the first orders made in the second proceedings were made on 9 September 2009. I think it unlikely that new proceedings would have been commenced in 2007 during the pendency of the 2005 proceedings. Thus, it may be likely that the reference for the second proceedings should be BRC9916/2009, rather than BRC9916/2007. However, I need not concern myself with this).
In both of the earlier proceedings, the mother was known as Ms Waterford.
Substance of the earlier orders
The final consent orders made by Barry J on 1 October 2008 provided in essence that the children live with the father; until they commence their “prep” they spend supervised time with the mother as agreed between the parties but failing agreement supervised time at such times as may be available at a contact centre; upon commencing their “prep” year on alternate weekends at a contact centre; plus other supervised time as the parties may agree in writing including special days; such “not to preclude” the children spending time with their sibling B a further child born to the mother in April 2008 whose father was identified by DNA testing as Mr S.
The orders provided further that the father have sole parental responsibility for the children, although requiring him to consult with the mother and give consideration to her views; and other orders relating to information and specific issue matters.
A notation to those orders (below order 2 concerning the supervised time) provided that:
AND IT IS NOTED that supervision is only required until the children are old enough.
There was no indication in the orders as to the intended meaning of “old enough”.
The orders made on 16 March 2010 by Purdon-Sully FM were in contravention proceedings brought by the mother. A variation was made to order 10 made by Barry J (concerning communication), to which I need not specifically refer. More relevantly, the notation below order 2 of Barry J’s orders was altered so as to read:
AND IT IS NOTED that the supervision at the [C Contact Centre] shall continue for a period of not less than twelve (12) months from the date that such supervised time shall commence at the Centre and that at the conclusion of such time the parties shall attend upon a Family Dispute Resolution Practitioner as agreed by them in writing and failing agreement as appointed by the Senior Family Consultant of the Federal Magistrates Court at Brisbane to discuss the introduction of unsupervised time between the Mother and the children and save for emergent [sic] circumstances the parties follow this process before seeking a variation to this order.
The parties’ proposals
Mother
The mother’s amended response filed 13 December 2011 set out several orders then sought.
At the trial however the mother refined her proposal as:
· the children live with the father
· the children spend time with the mother on alternate weekends from after school Friday until Sunday afternoon, half school holidays and special days (as set out in her amended response) to include B’s birthday
· there be equal shared parental responsibility for the children
· the mother be “included” in any “hospitalisation” of the children
· the children not “cross the border” (explained as the Queensland territorial borders) without 2 months notice to the other parent
· the mother have access to all school and health records concerning the children and also school photographs
· the children have telephone communication with B “when [B] gets older”.
During the trial, the mother made clear that she did not seek telephone communication between herself and the children, for reasons I will later explain.
By a privileged document not put into evidence produced by the mother at the trial (the document being an extract from a lawyer giving advice to the mother) the mother put as an alternative proposal the substance of part of that advice:
I note your current application is for alternate weekend time with the boys, Friday to Sunday. It may be that your application should seek to build up to this over time, perhaps by starting with a few months of unsupervised [sic] time, followed by a few months of day contact, single overnights and eventually full weekends.
The mother’s alternative proposal contains some inherent confusion. Perhaps “unsupervised” in the third line was intended to read “supervised”, then followed by (unsupervised) day contact etc. However, the thrust of the alternative proposal nonetheless is clear as a gradual “build up” to alternate weekends Friday to Sunday.
Father
The father’s amended response (styled “reply”) filed 12 June 2012 set out several orders then sought by him.
At the trial however the father also refined his proposal (ex 1), which essentially sought:
· the children live with him
· he have sole parental responsibility for the children as to their education, medical and allied health and any other matters affecting the children’s long-term care welfare and development, and keep the mother informed as to major decisions concerning such, with communication of such to the mother to be by registered post
· unless otherwise agreed in writing between the mother and the father the mother have no contact with the children “other than as specifically ordered herein”
· the mother be at liberty to send to the children letters cards and gifts, via a PO Box address nominated by him, on 1 occasion each month; the children’s birthdays; and Christmas; the father to collect such and encourage the children to read any letters and to ensure any photographs or items sent by the mother to the children are kept by them
· the father keep the mother informed as to details of the children’s medical and allied health professionals
· the mother have the ability to request and receive, at her expense, from the children’s medical and allied health professionals information and to receive copies of any prepared reports concerning them
· the mother to have the ability to request and receive, at her expense, copies of school reports, photographs, notices, newsletters and information as to the children’s progress, behaviour, educational assessments, educational progress and educational programs
· the father provide the mother a mobile telephone number to contact him in the case of any emergency
· a non-denigration clause
· the father send to the mother a letter by registered post in relation to the children’s heath, education, development and any other significant events in their lives, within 7 days of any final order, and subsequently at least once in each calendar month, in the first week of such
· if either of the children should express a desire to contact the mother or spend time with the mother the father facilitate such.
Independent children’s lawyer
The independent children’s lawyer supported the father’s proposal, except for his proposal in the third bullet point, namely that, unless otherwise agreed in writing between the mother and the father the mother have no contact with the children “other than as specifically ordered herein”.
The independent children’s lawyer sought further the addition of 4 orders to the father’s proposal, namely:
· the father keep the mother informed as to the name and address of the school the children are enrolled in and attend
· the father keep the mother informed of any illness or injury suffered by either of the children that requires medical attention and ensure that the mother is provided with the names and addresses of all treating medical or allied health practitioners including counsellors or of any hospital or medical centre the children attend
· in the case of any emergency concerning the children the father immediately notify the mother of such and provide her with all relevant information as to the child or children’s condition, diagnoses and recommended treatment
· the independent children’s lawyer be discharged.
The second and third of these to some extent overlap some of the orders sought by the father. However the intent of what the independent children’s lawyer intended to add is clear.
Relevant background facts concerning the parents
The mother is 31 years. She lives at Suburb H in Brisbane with her third child B born in April 2008, 4 years (nearly 5 years). Previously a professional sportsperson, the mother at the time of the trial was unemployed outside the home, describing her role as “stay at home mother”. At the time of the trial the mother was unpartnered.
The father is 40 years. He lives at Suburb A in Brisbane with the children. Previously a labourer, he also is unemployed outside the home, describing his role as “stay at home dad”. At the time of the trial he also was unpartnered.
The mother and the father commenced living together in about 2002.
They married in March 2004.
They separated, it appears, in about late 2005.
Children’s time with the mother since separation
At the time of the trial, the children had not spent time with the mother since 7 July 2012, at C Contact Centre.
Rather than focus on the time the children spent with the mother between separation and about mid 2010, it is both relevant and convenient to focus on the time the children have spent with the mother between about mid 2010 and 7 July 2012. This is documented in exs 4 and 5.
Unfortunately, the arrangements put in place by Barry J’s order as varied by Purdon-Sully FM’s order largely have been unsuccessful as between the children and the mother, in particular in recent times, as will be explored below.
Principles relevant to parenting orders
Children’s best interests paramount
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underlying objects
Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
· ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
· protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
· and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
· children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
· children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children; and
· children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Determining what is in a child’s best interests
Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
· the benefit to the child of having a meaningful relationship with both of the child’s parents; and
· the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.
Parental responsibility
Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.
Equal time/substantial and significant time
Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
· the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
· if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
· days that fall on weekends and holidays; and
· days that do not fall on weekends and holidays;
and:
· allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
· allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
· how far apart the parents live from each other; and
· the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
· the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
· the impact that an arrangement of that kind would have on the child; and
· such other matters as the Court considers relevant.
Prior parenting plans
Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.
Other provisions
The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.
Weight
Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.
The evidence
The mother relied on two affidavits by herself, filed 11 June 2012 and 15 November 2012 respectively.
The father relied on an affidavit by himself filed 1 June 2012, and one of the paternal grandmother, also filed 1 June 2012.
The independent children’s lawyer relied on two family reports by Ms N, social worker, and family consultant, the first report being dated 11 August 2011 annexed to her affidavit filed 15 August 2011, the second being dated 4 June 2012, ex 3; and oral evidence of Ms D, social worker, and supervisor, C Contact Centre.
The parties relied also on exs 1 – 6, of which ex 4 comprised an agreed bundle of documents extracted from documents produced pursuant to various subpoenae; and ex 5 of which comprised additional documents produced by Relationships Australia, which organisation runs C Contact Centre.
If I do not refer to the evidence of any witness, or parts of the evidence of any witness, it ought not be inferred that such has been overlooked. In preparing these reasons, I have taken into account all of the evidence of all of the witnesses and all of the documentary evidence.
Issues – matters for determination
It is common ground that the children will live with the father.
Thus, the principal matters for determination are:
· the children’s best interests in relation to parental responsibility
· the children’s best interests in relation to the time, if any, which by order, they should spend with the mother
· otherwise, the children’s best interests according to the parties’ competing proposals already set out.
The statutory matters
The children’s best interests
I turn now to the statutory matters concerning the children’s best interests.
Section 60CC(2) – the primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents
The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark (2009) FLC 93-405 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.
Section 60B of the Act provides that the objects of Part VII are to ensure the best interests of children are met by (amongst other things) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests and protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Plainly, one of these objects may impact upon the other.
In this section, as it is common ground that the children should live with the father, I propose to concentrate on “meaningful relationship” between the children and the mother.
Further, although it is necessary to favour “the prospective approach”, largely assessment of this can be based only upon matters as they stand at the time of the trial, in terms of examining and assessing benefit to the children prospectively of a “meaningful” or “significant” relationship with the mother.
The benefit to the children of the mother having meaningful involvement in their lives, both currently and prospectively, was the central matter explored at the trial.
Regrettably, the conclusion of Ms D, social worker and the supervisor of C Contact Centre, who has had involvement with the mother and the children at that Contact Centre since July 2010 is that:
1. the Contact Centre no longer is prepared to provide a service to the mother for her to spend time with the children
2. it is not in the children’s best interests for the Contact Centre to do so.
Ms N, who also is a social worker, and the family consultant in the matter, who was present in the courtroom to hear Ms D’s oral evidence, ultimately concurred with her view.
On 27 November 2011, the Contact Centre made a decision to suspend visits between the mother and the children.
On 7 July 2012, or soon after, the Contact Centre made the decision to terminate its service in relation to the mother and the children. This decision, it appears, was communicated to the mother on or about 14 August 2012.
Ms D, as I have mentioned, is a social worker. She obtained her degree in 2007, only about 5 years before the trial. However, she has worked with children for about 30 years in all.
Ms D was asked by Ms Pendergast, Counsel for the independent children’s lawyer, to explain her reasons for terminating the service and for concluding that it is not in the children’s best interests for the children to continue to attend the Contact Centre in order to spend time with the mother.
Ms D said that there were “themes” underlying the reasoning, based upon her own observations since July 2010 during sessions between the children and the mother. Carefully, Ms D, in her oral evidence, formulated and articulated these “themes” and reasoning as follows, based, as she said, upon her own observations since July 2010 during sessions between the children and the mother. These “themes”, largely are supported by the Contact Centre’s case notes, voluminously included in exs 4 and 5. Ms D orally recounted:
1. the mother talking negatively about the children in front of them
2. the mother talking negatively about O in front of O
3. three “reunification” visits (to which I will refer below) were considered
4. the mother did not initiate engagement with the children
5. in the half hour or so before the mother arrives, and the half hour or so after the mother leaves, the children were “happy and animated”, but there were “definite changes” in the children’s behaviour during the sessions with the mother
6. the children showed signs of being unsettled, if not aggressive, while the mother was there
7. O showed facial expressions of disappointment while the mother was there
8. the children showed signs of “withdrawing” while the mother was there
9. while the mother was there, the children often were playing on their own
10. the children did not respond to the mother or the Contact Centre staff
11. there were signs that O was not wanting physical contact with the mother
12. there were signs of O’s discomfort while the mother was present, for example, he would not smile or laugh during a two hour period of contact
13. while the mother was at the Contact Centre the children nonetheless would look to the staff to play and for engagement, rather than the mother
14. the mother often appeared frustrated and disinterested in engagement with the children
15. there was observation that the relationship between the children and the mother was poor
16. O was often ignored by the mother
17. O refused to engage at all on some occasions with the mother
18. the mother’s behaviour towards the children was inconsistent
19. on several occasions the mother ignored Contact Centre staff direction
20. communication between the mother and Ms D, as a supervisor, sometimes comprised “yelling” by the mother and other times “raised voice” by the mother
21. the mother refused to pay fees.
Ms D concluded this oral summary by saying that the “main focus” of the decision by the Contact Centre to suspend, and ultimately terminate, its service was “observational”.
Ms D said that on 27 November 2011, the decision by the Contact Centre to suspend its service to the mother and the children was made because the children on that occasion became withdrawn after the mother’s arrival; there was no interaction initiated by the mother with the children; the mother did not follow the supervisor’s directions to turn off her mobile telephone; and L refused to go near the mother. Ms D said that, in essence, “a combination of things” in that visit, 27 November 2011, had effect that “things had come to a head”. Moreover, Ms D said that the “play” was between the mother and B on that occasion and that “[L] and [O] were left out of the play” which had become “a pattern” according to many prior case notes.
Ms D referred to clause 6.7 of the Contact Centre Service Agreement, that mobile phones were to be turned off during visits, but agreed that there had been a later agreement with the mother to vary clause 6.7 in her case so that she could speak with her mother, the maternal grandmother, and that the father had no concerns about that so “we agreed to that”. However, Ms D made clear that there was a process stipulated to the mother that before she made any call she was to notify the support worker and be on a speaker phone, and the mother had used her phone without following that process, adding that the mother “continually texted and used her phone”.
Ms D said that after the 27 November 2011 suspension a meeting was held with the venue manager on 2 December 2011, and a further meeting was scheduled for 14 December 2011 between the venue manager, the supervisor, the mother and a support person for the mother, at which meeting the Contact Centre’s concerns were advised to the mother. In particular, Ms D said that the mother was told of the concerns that during the visits the mother favoured B, rather than L and O, and recommended a break in the visits, with L and O in the meantime to have intervention at E Counselling Service, then sessions for L and O with a “reunification” person at the Contact Centre, before any reintroduction of visits by the mother. There were two such “reunification” visits (26 March 2012 and 11 April 2012) with the mother not present.
Prior to the “reunification visits”, with the father’s agreement, the mother and the children had a short “Christmas” visit on 21 December 2011 for 15 minutes; and the children had attended E Counselling Service in early February 2012 during a “group week” (seemingly 6 – 9 February 2012).
An appointment was made for 26 May 2012 for the mother and the children to meet, with further appointments scheduled for 9 June 2012 and 7 July 2012, the latter two being each for 2 hours.
Ms D referred to the case note for 9 June 2012 (part of ex 5). According to the case note the children hid in a cupboard on the mother’s arrival at about 9am. There was some interaction between 9:00am and 9:20am but after 9:20am both O and L “played by themselves with no communication/engagement by [the mother]”. Subsequently there was some successful interaction. It is not necessary to set out the full case note, extending to 4 pages. The conclusion however is important:
Overall, this visit went well. Supervisor does note some positive behavioural changes in [the mother] in the way of talking to the children regarding discipline. Supervisor notes that minimal engagement is initiated by [the mother] though. On at least two occasions [O] sought [the mother] ought and [the mother] walked away from him. Even though this may have been unintentional it was evident by [O’s] facial expression he may have been disappointed. Towards the latter end of the visit [the mother’s] tones and volume were elevated. It appeared by observation of tone of volume this may have been a result of tiredness or frustration perhaps. Supervisor to monitor effectiveness of time duration. Two hour duration may be too long for [the mother]. Supervisor is of the opinion that visits stay at monthly intervals at the moment to carefully monitor the boys’ emotional well-being with transitioning back to visits.
The case note for 7 July 2012 (also part of ex 5) provides great detail of the interaction. Again, I will not set out the full case note, extending to 5 pages of line by line description of the two hour visit. Important however is the notation as to the conclusion of the visit at 10:59am:
[The mother] says her good bye to the boys. [L] hugs [the mother] and says ‘I love you’. [The mother] has to pursue [O] to join with him and get him to say good bye. [The mother] says ‘I love you’ and [O] says good bye and repeats ‘I love you’. (emphasis added)
The conclusion to this case note also is important:
Worker held back from assisting [the mother] with joining with both [L] and [O]. This was due to previous comments from [the mother] stating that she felt that staff were ‘taking over’ the visit. Through out the visit both [O] and [L] did not freely seek out a connection with [the mother]. [The mother] tended to sit and wait for either of the boys to join with her. [O] displayed reluctance to join with [the mother] at the beginning of the visit and often wandered off on his own. [The mother] tended to ignore [O] for much of the time only joining with him when he came to her. [The mother] also tended to favour spending time with [L] and [B]. Also noted is the tone of the visit – which appeared that [the mother] said little and what was said was of a critical nature and tone.
All workers and supervisor present on the day noted that [O] and [L] were both animated and joyful before and after [the mother’s] visit and actually spent the majority of this time seeking out staff and encouraging them to play with them. This was particularly noted in the last 30 mins and when [the father] arrived to pick them up they weren’t keen to leave on time.
Ms D said in her oral evidence that after this visit a decision was made to terminate the service. I have set out already Ms D’s comprehensive reasons for that decision and the conclusion that it was not in the children’s best interests for the Contact Centre to continue the service for the mother and the children.
Ms D added that in her time at the Contact Centre only one other family had been “terminated”.
The mother, both in her cross examination of Ms D, and in her own oral evidence, challenged that she did not accept Ms D’s evidence as to what occurred on 27 November 2011, and gave her own version of many of the incidents described by Ms D in the case note. The mother said further that “they” had told her that “contact was being suspended due to the children having behavioural problems at home and at school” and that “they” had not told her of any concerns regarding herself. She rejected that she had been told by a staff worker not to use her mobile phone. Curiously, as to the meeting in December 2011 the mother said “I don’t recall that day and I’m not willing to recall it”.
During her cross examination by Mr Linklater-Steele, the mother left the courtroom for about 15 minutes, but returned after encouragement. Later, she said that she had left not because of “lack of control” but in “frustration”, because Mr Linklater-Steele “was asking the same questions over and over again”.
After the mother’s return to the courtroom, Ms Pendergast put to the mother that children often ask questions “over and over again”, and asked the mother how she would cope with that. The mother said “Yes, [B] does that all the time and I’ll ask him show me what you want to tell me and he uses his ABC blocks to spell it out”.
The mother said she feels she has not contributed to the circumstance that visits at the Contact Centre largely have not been successful.
Before the trial, the mother had told Ms N, as recorded in her report 4 June 2012, that she is unwilling to participate in further supervised visits at a contact centre; she was not prepared to participate in 1 hour visits (because of public transport difficulties such would “not be worth the effort”); and that “the situation” (contact centre use) had “gone on for too long now”: pars 59, 126.
In her oral evidence the mother reiterated that if supervised time again were ordered she would not go and agreed that she had told Ms N that. She then qualified her position by saying that she was “90% sure” that she would not go.
When challenged that at the Contact Centre visits she focused on B, the mother said “Yes, [B] is my focus because he is only 4”. When asked if she could leave B with her mother to visit O and L at the Contact Centre she said “That would be unfair to [B] for me to go to see his siblings and say to him you’ve got to stay with nanny while I see your brothers”.
She said that in order to attend C Contact Centre (from her home at Suburb H) she was required to catch two buses and then undertake a 20 minute walk, and further that the “family room” at the Contact Centre is “half the size of the courtroom” and there were “3 or 4 families there at a time”, adding later “it’s just not a friendly environment”.
The mother said thus that she wanted O and L to spend time with her and B at her home and “I just want to see my children”. She said that if there could be an order for O and L to spend time with her and B in her home, if O and L wanted to go home, or to telephone the father “That would be ok”.
She agreed however that such would require “a lot” of cooperation between herself and the father, and that she and the father cannot cooperate.
As to her proposal that there not be telephone contact between herself and O and L, the mother said as to her reason for that “The father has accused me of abuse and I don’t want that to happen”, and that she has been accused of abusing a number of people including at the children’s school and professionals, and her fear is that if there is telephone communication between her and the children “The father would accuse me of abuse of the children on the phone”.
The mother said that Ms N’s report 4 June 2012 was made after spending only 20 minutes with her and Ms N “could not see the changes in me in 20 minutes”, such that there should have been “three or four times with me before writing a report”. The mother added that she had completed several PPP courses and other courses concerning parenting and anger management and learned many strategies, for example “time out”, but cannot put these into practice at a contact centre because it is not allowed, saying “It is unfair that I can’t do with [O] and [L] what I do with [B] of what I have learned” and hence she experienced “frustration with [Ms D].”
In her first report, 11 August 2011, Ms N concentrated on the application by the maternal grandmother, making relevant evaluation at pars 137 – 154.
It is more relevant thus to refer to Ms N’s second report 4 June 2012, ex 3.
It will be noticed that Ms N’s second report was completed while the Contact Centre supervision was in place, but before the Contact Centre terminated its involvement.
Because of this circumstance, Ms N was in the courtroom to hear Ms D’s evidence.
In her report 4 June 2012, Ms N referred to the mother’s objection to the Contact Centre “I feel suffocated. I can’t be myself”: par 58. I have referred already to par 59, concerning the possibility of 1 hour visits rather than 2 hour visits, and the mother’s opposition to such for the reasons she gave. Ms N said that the mother “asserts it is now time to move on from supervised visits”, in particular because before B’s birth she was having “6 hour visits with [O] and [L]”: also at par 59.
Ms N recorded that the mother wanted to promote O and L developing a brotherly relationship with B as “important for all 3 boys”: par 60.
Ms N made an observation of the mother and the 3 children during her interview session, which echoed Ms D’s observation of the mother with the 3 children at the Contact Centre. Ms N said:
105. Clearly, [the mother] is proud of [B] and enjoying parenting him. Her focus during the session was primarily on [B]. She did not appear to be able to divide her attention amongst the 3 boys. (emphasis added)
Ms N then said:
107. [O] and [L’s] relationship with their mother appears to have become more distant. [O] in particular presented as having disconnected from [the mother]. [L] presented as wanting to please and be polite. (emphasis added)
Under the subject heading “Evaluation”, Ms N said:
129. [O] and [L’s] relationship with their mother presents as quite damaged. Whilst she is keen to have a relationship with them, they have not built a close bond with her. (emphasis added)
…
135. In relation to [O] and [L’s] need to know their mother, there needs to be some opportunity for them to maintain a connection with her. It may have assisted to have some form of visits at a Contact Centre. However, [the mother] is opposed to further Contact Centre visits and currently the visits are suspended. Even if there was an option for further Contact Centre visits, it is a concern whether this form of contact is sustainable on a long term basis. It is evident that the Contact Centre had concerns about managing [the mother’s] behaviour and concerns about her interaction with [O] and [L].
136. An option that could maintain a link would be an arrangement for [O] and [L] to receive letters/cards/emails from [the mother] on perhaps a monthly basis. The boys may need to have these read to them until they receive a higher literacy standard. [The father] would also need to encourage the boys to respond.
137. A further option could be for monthly phone calls between [the mother] and [O] and [L].
138. [The mother] could include [B] in the phone calls. It may also assist if there was an exchange of photos of [B] and also [O] and [L]. This could help the boys maintain a recognition of each other. (emphasis added)
Thus, Ms N recommended at the conclusion of her second report 4 June 2012 that the father have sole parental responsibility for O and L and promptly advise the mother of his decisions (recommendations 1 and 2) and:
3. That [the mother] communicates with [O] and [L] once per month by card/email/letter.
4. That [the mother] have a phone call with [O] and [L] once per month.
In her oral evidence, after hearing Ms D’s evidence, Ms N, as the next witness, was asked whether, having heard Ms D’s evidence, there were any changes to her previously expressed opinions, to which Ms N responded to the effect “I am concerned about [Ms D’s] evidence and observations. That indicates to me that despite all the input, essentially there has been no change in the mother’s approach and the children’s response”.
In relation to the mother’s proposal for unsupervised time with her on alternate weekends, half holidays and special days, Ms N said in her oral evidence, as previously observed in her second report, to the effect that “The interests of the mother and the children are not coinciding”, such would be “too much for the children”, “not in the children’s best interests” and “from the children’s perspective my concern is that it would not benefit them” (20 November 2012, 11:20am):
Ms N: I wrote in my second report about the interests of the mother and the children not coinciding and I think that is an example of that. That amount of contact when the children are not coping with the supervised contact at the contact centre, that amount of contact would be too much for the children and, in my assessment, would not be in the children’s best interests. I can understand that that may be what the mother would like to see happen and what she may like to have, but from the children’s perspective my concern is that it would not benefit them. (emphasis added)
Whilst not asked directly about the mother’s alternative proposal of a gradual “build up” to single overnights and eventually full weekends, Ms N was asked as to what strategies could be used to “bridge the gap” between the mother and the children “at this stage”. Ms N responded, reluctantly but firmly “I’m just trying to think what hasn’t been tried already”, “there has been incredible input into the mother and into the children as well” and “I could not see how you could move to an alternate weekend unsupervised arrangement for these boys”:
Ms Pendergast: Are there strategies that the mother could adopt if the court was prepared to order that sort of unsupervised contact that would be enough to bridge the gap between her and the boys at this stage?
Ms N: My goodness, I’m just trying to think what hasn’t been tried already that could possibly be put in to deal with this when you think back over the process of this and it’s a problem that stretches right back to when these boys were little. There has been incredible input into the mother and into the children as well. Through the input that the mother’s received, she has been able to reunify with her little boy [B], but to now move to alternate weekends unsupervised with children who are not attached to her, who are not responding well to her and she is not responding to them and I make that comment on the basis of the evidence I have heard this morning as well as my observations, that she’s not responding to them in perhaps a way that best meets their needs. I could not see how you could move to an alternate weekend unsupervised arrangement for these boys. (emphasis added)
In relation to continued use of a contact centre, if that should be available, or ordered, Ms N said: (extract above):
… the children are not coping with the supervised contact at the contact centre …
In the context in which Ms N said this, and in the context of her second report, pars 135 – 138, and the absence of any recommendation by her that such continue (see the recommendations in her second report), it is plain that Ms N considered also that the continued use of a contact centre for the children to spend time with the mother also would not be in their best interests.
Ms N was asked to consider “reunification” with the mother in the context of the inclusion of B. Ms N said to the effect, with oral emphasis:
But – [O] and [L] are not attached to her.
By way of enlargement on this, Ms N continued that the mother “does not respond to [O] and [L] in a way that best meets their needs”.
Ms N said that the basis for her recommendation 4 (referred to above) as to a monthly phone call between the mother and O and L was “I put that in for the boys to reconnect with the mother’s voice”. However, having heard Ms D’s evidence, said that nonetheless she “held to” her recommendation 3 (above), namely that the mother communicate with O and L once per month by card/email/letter “because these are things they can open and deal with in their own way”.
Importantly, Ms N said that the children have the right to form their own identities, and to develop a “realistic” picture of each parent, and if there be “no contact”, there would be no way for the children to have any balance in the creation of a picture of the mother, so that in essence there must be some form of communication, even if only by way of cards letters and gifts, so that there may come a time when the children would want to initiate physical contact with the mother and that she would “like to think that there is an option for the boys to share something with her, rather than nothing”.
Ms N said that it is important that if the children should express a wish to the father to initiate physical contact with the mother or the maternal grandmother, in any form, that this be facilitated by the father. This evidence was put against the background that the father has been “very good in keeping precisely to court orders”.
Ms N said that there needs to be “an environment” for the children to be “able” to have a relationship with the mother, but in the context of their “not suffering harm”.
In this regard, I note that in Ms N’s second report, par 127, Ms N said:
127. The pivotal issue identified in this report is the need to balance the boys’ need for a relationship with their mother with the need to protect the children from emotional harm and potentially physical harm. (emphasis added)
However, there was no expert evidence, eg, from a psychologist, that the children needed “protection” from the mother, nor indeed that they would suffer “emotional harm” or “potentially physical harm” if they should continue to be exposed to her, either in the supervised or unsupervised environment.
This is an important aspect of the matter because, whilst always the “twin pillars” of the benefit to children of having a meaningful relationship with their parents, and the need to protect children from physical or psychological harm, has always been regarded as a “balance” exercise, in this particular case the focus was on the benefit to the children of having a meaningful relationship with the mother in the context of the mother’s ability to foster that, in the circumstances of the children not being attached to her (Ms N, above); of not having built a close bond with her; and their relationship with the mother presenting as “quite damaged” (Ms N’s report, par 129, set out above); as explained further in the oral evidence above of Ms D and of Ms N; rather than there being any direct expert evidence of there being a need to protect the children from physical or psychological harm, eg, by subjecting them or exposing them to abuse, neglect or family violence, as such.
Thus, in this particular case, the focus is on whether a “meaningful” or “significant” relationship between the mother and the children either presently exists, or can be fostered prospectively to exist.
Ms N in her oral evidence said that “The supervision option has ceased” noting that “other supervisors” have been used as well, but was firm in her view that “the door should be left open” to some meaningful relationship developing between the children and the mother in the future.
The case is thus a difficult one, in the sense that, as appears clear, the evidence in total appears to be that “the supervision option has ceased”, both in respect of continued attempts to foster a relationship between the children and the mother through a contact centre, or by other supervisors, and Ms N was firm in her view that unsupervised time with the mother in accordance with her proposal was not in the children’s best interests, and that in relation to the mother’s alternative proposal, Ms N said “I could not see how you could move to an alternate weekend unsupervised arrangement with these boys” because, as Ms N candidly said:
I’m just trying to think what hasn’t been tried already …
Under the mother’s cross examination of Ms N, as to why Ms N spent only 20 minutes with the mother for the purpose of her second report, Ms N responded in a very kind voice to the mother that she had used “longitudinal evidence” for her assessment, meaning, I think, evidence relating back to her assessment in relation to the first report, as well as for her assessment in relation to her second report.
The evidence concerning an existing or prospective meaningful relationship between the children and the mother thus presents a difficulty in relation to any meaningful structure able to be the subject of a current order save that, imperatively, as emphasised by Ms N, “the door should be left open”.
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence
Ms N’s concluded that the children are not at risk in the father’s care: second report, par 117. Although it is common ground that the children will live with the father, so as to make the observation somewhat academic, it is nonetheless important to mention Ms N’s assessment, given that all parenting orders made in the Court necessarily must be based upon a trial judge’s conclusion as to children’s best interests.
I have referred above to Ms N’s conclusion in her second report, par 127, as to the need to “balance” the children’s need for a relationship with the mother and the need to “protect the children from emotional harm and potentially physical harm”, and would reiterate my observation that there is no expert evidence, eg from any psychologist, or other person qualified to assess the present existence or future likelihood of emotional harm (or indeed psychological harm) with effect that I would conclude, on the basis of the evidence presented at the trial, that there is no need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence by the mother.
Ms D and Ms N are both social workers. Neither is a psychologist. Thus, properly, neither purported to express any opinion beyond their expertise but both properly, and firmly, expressed their views in terms of the viability of any available structure now for the children to have or develop a meaningful relationship with the mother.
I would add that Ms N said in her second report, at par 124, in relation to the mother’s ability to manage O and L’s daily needs, such is “untested”, “as she has not had them in her sole care”, meaning, now, for a very long time.
Ms N mentioned further in her second report, par 125, that for as long as there were supervised visits at the Contact Centre there was a “safe environment” wherein O and L could spend time with the mother and “have the opportunity to develop a relationship with her”, but, importantly, that “this arrangement also assisted with protecting the children from exposure to the adult conflict”, being a reference back to earlier observations in her report of conflict between the mother and the father and their inability to cooperate.
The inference, I think, in Ms N’s par 125 was that if the children should spend unsupervised time with the mother in her home, with the mother and the father having to arrange changeover and such matters, the “adult conflict” might be such as to expose the children to such.
Section 60CC(3) – the additional considerations
Any views expressed by the children
In oral submissions, Ms Pendergast, for the independent children’s lawyer, identified “three bodies of evidence” concerning the children’s expressed views not to spend time with the mother, being as stated in various case notes maintained by the Contact Centre (exs 4 and 5); parts of the father’s evidence; and parts of the evidence of the paternal grandmother; the latter two categories relating more to the children’s conduct and behaviour leading up to the children spending time with the mother at the Contact Centre, and afterwards, as well as statements by the children to the father and the paternal grandmother.
In addition, Ms N, in her second report, at pars 97 – 100, referred to O responding quietly “Yes” when asked if he remembered seeing the mother and “then put his head down”; that L had responded “I got frightened” and “I was frightened of Mum”; that L said he was “cross” about seeing the mother at the interviews but expressed that “I’d like to see my brother [B]”; and that both children said they were “looking forward to seeing [B]”.
Ms N observed, at par 101, that at the commencement of the observation session with the mother “[L] went straight over to [the mother] and gave her a hug. [O] hung back. He complied when [the mother] asked him for a hug”.
Importantly though I would refer back to the Contact Centre case note concerning the last time the children saw and spent time with the mother, 7 July 2012, concerning both children at the session saying “I love you” to the mother.
It seems to me that I should place little weight on the children’s views expressed to the father and to the paternal grandmother, not because the views expressed by the children might not have been expressed as set out, but because of the overall conflict between the mother and the father, described by Ms N, such that the children’s views expressed to the father and the paternal grandmother were in conflicted circumstances for the children.
I would conclude, having regard to all of the evidence, in particular the children’s expression of “love” directly to the mother and also their stated wish to see B, that the children very much would like to have a relationship with the mother and B.
However, regrettably to date this has not been able to be achieved.
The nature of the children’s relationships
Ms N assessed that the children are “closely bonded” with the father, who is their primary carer: second report, par 133.
I have referred already to Ms N’s expressed view that the children’s relationship with the mother presents as “quite damaged” and that whilst the mother is keen to have a relationship with the children, “they have not built a close bond with her”: par 129.
Further, I have referred already to Ms N’s oral evidence that the children are “not attached” to the mother.
In relation to the maternal grandmother, Ms N reported in her second report, par 103, that during her interview session with the mother, O, L and B, the mother telephoned the maternal grandmother and “put her on speaker phone”. Ms N said that both O and L said that they “did not want to talk to” the maternal grandmother and “[B] copied them”, but that when the mother said to her mother, the maternal grandmother, that “none of the boys wanted to talk” L said that he would talk, said “hello” but that then the maternal grandmother asked “if he was missing her” so that L then suggested that she talk to B and “tried to hand the phone over”.
There is evidence that the relationship between the mother and her mother, the maternal grandmother, is conflicted, and possibly (but I make no finding), this has come through to the children. Whether or not that is so, it is plain I think from Ms N, par 103, that the children seem to have, at best, an ambivalent relationship with the maternal grandmother.
In contrast, Ms N reported that the children’s relationship with the father and the paternal grandparents “presents as having remained close” and that “the boys present as trusting their father and paternal grandparents”, second report: par 111.
Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
There is little doubt, I think, that the father has the ability to facilitate and encourage, to the extent possible, a close and continuing relationship between the children and the mother. This is evidenced, I think, by the circumstance, as observed at the trial, that the father has been “very good” in adhering to court orders. Further, in the long history of the involvement of C Contact Centre, it appears that the father presented the children on all scheduled occasions. Moreover, even after 27 November 2011 when the Contact Centre had suspended visits, the father made the children available on 21 December 2011 for a Christmas visit with the mother.
The matter of the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father is, in this particular case, somewhat academic as the children live with the father, and it is common ground in these proceedings that they will continue to do so. However, I should make special mention of evidence given by the mother that if the children were to be able to spend time with her unsupervised in her home, with B, and the children expressed a wish to “go home” or to telephone the father, she would accommodate that.
I would conclude that, despite the parents’ own inability to cooperate with each other as detailed in Ms N’s second report (see, eg, pars 112 – 114), referring (at par 114) to “their deeply embedded poor opinion of each other and their long standing history of conflict”, nonetheless, each has the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other child or person (including any grandparent or other relative of the children) with whom he or she has been living
This matter did not assume significance at the trial.
Practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
This matter did not assume significance at the trial, save for the mother’s public transport difficulties in attending the Contact Centre, as mentioned.
The parties’ capacities to provide for the children’s needs, including emotional and intellectual needs
Ms N reported:
117. [The father] has a strong support system to assist him in meeting the boys’ needs. The paternal grandparents provide practical and emotional support. He has professional support from [Mr F]. He has established links with the school and the boys’ doctors. All the information collated for this report indicates [the father] is ensuring [O] and [L’s] physical and emotional needs are met to the best of his ability. Clearly, [the father] faces challenges in managing the boys’ behaviour but there were no indicators that the boys were at risk in his care.
In relation to the mother, I have referred already to Ms N’s assessment in her second report:
129. [O] and [L’s] relationship with their mother presents as quite damaged. Whilst she is keen to have a relationship with them, they have not built a close bond with her. (emphasis added)
Further, Ms N reported, in relation to the mother’s capacity to provide for the children’s emotional needs:
132. All the information collated for this report leads to a conclusion that [O] and [L’s] emotional needs would not be met if they were to have unsupervised time with [the mother]. Meeting the behavioural needs, special educational needs and managing their medical needs are likely to prove a considerable challenge to [the mother]. There is concern that [O] and [L] would be unduly stressed by unsupervised visits. (emphasis added)
Ms N continued:
134. [The mother] presents as managing [B’s] and to be devoted to [B]. It is a concern that the challenge of managing [O] and [L’s] behaviour may impose such stress that it has an adverse impact in her ability to meet [B’s] needs. The observation session for this report and the notes from the Contact Centre about their supervised visits indicate that [the mother] is more focused on [B] and has difficulty dividing her attention amongst the 3 boys. (emphasis added)
Earlier in her second report, Ms N said:
61. [The mother] insists that as she has proved she can manage [B’s] care, there should not be a question about [L] and [O] staying for weekends at her home. She notes she has a bedroom set up for the boys. She is adamant that she is well able to meet their physical needs.
62. She does not believe she poses any risk of harm to [O] and [L]. She stated that if [O] and [L] felt at risk, they were now old enough to call out for help or to phone 000 and ask for Police assistance.
Overall, however, Ms N said, also in her second report:
124. [The mother] is untested in her ability to meet [O] and [L’s] daily needs as she has not had them in her sole care. Her time with [O] and [L] has been supervised at a Contact Centre or by relatives (at one point [the maternal grandmother], at another time by the paternal grandparents). (emphasis added)
Mr Linklater-Steele of Counsel, for the father, cross examined the mother as to whether she had considered strategies which she would use if the children were in her unsupervised care, if they presented “challenging behaviour”, for example loss of temper and tantrums, in particular concerning O’s behaviour. Whilst the mother agreed readily that she has “not experienced that”, she said equally readily “I would just tell him to calm down, put on soothing music and get him to watch a video or something”, and agreed that it would be “trial and error” with her management of O.
I would refer again to the mother’s evidence, previously mentioned, that she has “learned a lot” from her PPP parenting courses and other courses undertaken by her, and that successfully she deals with B with what she has learned, but “I can’t put the information I have learned into practice with [O] and [L]”, at a Contact Centre, for example, the “time out” strategy, and that her view is “It is unfair that I can’t do with [O] and [L] what I do with [B] of what I have learned”.
The mother’s own view thus is that if only there could be an order that O and L spend unsupervised time with her, she would be able to put into place the same strategies which she has learned, and uses in relation to B, and would be able to “prove” her capacity to provide for O and L’s needs, including their emotional and intellectual needs.
Whilst, as properly observed by Ms N, at par 124, the mother is “untested” in her ability to meet O’s and L’s daily needs as she has not (at least in recent times) had them in her sole care, there is the need always to have an open view. Unfortunately, however, the evidence of Ms D that the mother was unable to engage with O and L at the Contact Centre, unable to initiate play, and unable even to respond emotionally to O’s advances to her, combined with the evidence as to the mother’s focus on B, even when O and L were present, and the evidence to similar effect by Ms N, have effect that the mother is unlikely to be able to achieve in her own home that which she could not achieve even in a 2 hour period at a contact centre, such being without the demands and pressures of household chores. Further, the mother said, saliently “Yes, [B] is my focus because he is only 4”.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Court thinks are relevant
O was born with a cleft lip and cleft palate. He had surgery in April 2004 and subsequently in September 2004.
In her second report, par 91, Ms N said:
91. In terms of health, [the father] describes [L] as “borderline celiac”. He notes [L] flatly refuses to eat some foods and [L] displays some physical symptoms. [L] was tested for celiac condition in 2006. [The father] recalls [L] scored 7 on a 15 point scale. [The father] also notes [L] has turned in feet and knobbly knees. [L] had required orthotic inserts in his shoes but as [the father] had ensured he completed the recommended exercises, these were no longer required. [The father] indicated [O] had no specific medical issues currently.
92. As he grows, [O] will require further dental treatment due to his cleft palate. [The father] ensures [O] is monitored regularly.
93. In terms of the boys’ behaviour, [the father] relates that when [O] is frustrated or angry, [O] will kick and scream loudly. These screams have been so loud there was an instance when Police attended to check on [O] following a complaint. [The father] explains that [O] needs calm and routine or [O] responds by screaming or withdrawing. [The father] indicates that the best way to manage this is to hug ad hold [O] until he settles down. [The father] referred to a recent incident when [L] was unwell and so all the attention was on [L]. [O] began screaming. [The father] recalls [L] intervened, putting his hand over [O’s] mouth and saying he was sick of the noise. [L] told [O] to stop screaming or their father would get in trouble. [O] then stopped screaming. (emphasis added)
Ms N said further:
128. Added to this factor is the issue of the children’s special needs. This is particularly evident in relation to [O]. [O] presents as a child who needs routine to function optimally. He is also the child who has demonstrated challenging behaviour – lashing out verbally and physically. He presents as needing consistent management from adults attuned to his needs. It is a significant concern as to whether [the mother] would be able to manage his behaviour. (emphasis added)
Earlier in her second report, Ms N said:
86. [O] is now aged 8 years 4 months. [L] is now aged 7 years 3 months. Both boys presentation at interview was similar to that observed previously. They were appropriately dressed in smart casual clothes. They appeared of proportionate height and weight. There were no indicators that their physical needs were unmet.
More importantly, Ms N referred to an assessment of intellectual impairment concerning O, and that although L’s thinking and reasoning skills are “above the level for intellectual impairment”, nonetheless they are “below his peers”:
87. [The father] indicates [O] has been assessed as intellectually impaired. [O] has an Individual Student Plan and works on a modified program of schoolwork. He receives extra assistance with numeracy and literacy. [The father] explained that [O] will be excluded from the literacy component of the NAPLAN tests. In 2012 [O] is in year 3. [The father] explained the school assessed [O] as achieving at a level 6 months behind his age and so is in a combined grade 2/3. This allows him to work at his level.
88. The subpoenaed documents show a Guidance Report for [L] completed in April 2011. The test results show [L’s] thinking and reasoning skills were somewhat below those of his peers but that his results were able the level for intellectual impairment. He has an Individual Student Plan and works on a modified program of schoolwork. He receives intensive literacy support and attends a small group for numeracy support. He has also required support for language development. In 2012 [L] is in year 2.
89. At interview, [the father] provided a letter (dated 8.5.2012) from both boys teachers. [O’s] teacher noted that [O] was capable of working independently on some tasks but was sometimes reluctant to do so. [O] was described as polite, well behaved and thriving on praise. At times he has difficulty verbalising his thoughts and feelings, especially when excited. [L] was described as a reliable and cooperative student who worked well in most situations. He had a good work ethic and always tried his best. [L] was to receive a High Achievement for his behaviour at school in 1st semester 2012. (emphasis added)
At par 110, Ms N said:
110. [The father] reported the boys still displayed challenging behaviour. He described a recent incident where the boys had not got what they wanted at the shop and then being rude to him. He had put both boys in the car where [O] and [L] began squabbling with each other. [O] lost his temper, pulled off the door handle and threw it. It cracked the rear view mirror. [The father] notes he had previously removed the window winders to stop the boys opening the windows and throwing things out of the car. [The father] states he drove the boys to his parents’ home to help settle them. As punishment he would not allow them to go to see the model trains that weekend. [The father] notes that [O] apologised. He feels [O] now understands when he has done wrong whereas [L] just becomes wound up. (emphasis added)
Plainly, there are difficulties in the children’s behaviour, whether these difficulties be sourced emotionally, or otherwise.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
Plainly, both of the parents love the children and wish to accept the responsibilities of parenthood.
Family violence involving the children or a member of the children’s family or family violence order
There is an alleged family violence history, as documented in the evidence. I would refer to the chronology prepared by the independent children’s lawyer.
Presently however this is not a relevant consideration, the parties having been separated since about late 2005.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
Whilst it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children, the several matters to which I have referred may tend to make this unlikely.
In particular, whilst I will make a final order in these proceedings, Ms N’s strong recommendation that “the door should be left open” as to some meaningful relationship developing between the children and the mother in the future, has effect of the possibility of further proceedings as to future orders concerning the children spending time with the mother and otherwise communicating with her, unless, in the future, these matters are able to be arranged between the parents.
Other relevant matters
Ms N, in her second report, pars 120 – 123, referred to several matters concerning the mother’s “mental health”, including that in 2009, in the 2005 proceedings, there had been evidence by Dr V that the mother displayed “traits of a personality disorder but not a psychiatric illness”, and other matters.
I would emphasise that although I have read Ms N’s second report, pars 120 – 123, there was no evidence adduced in the trial in these proceedings as to any such matters. Therefore, whilst I note Ms N’s observations I regard them as of historical significance only, and place no weight on them in relation to my determination as to the children’s best interests in the current trial, as it proceeded.
Discussion and conclusions
Parental responsibility
The presumption in s 61DA(1) does not apply. There are reasonable grounds to believe that the parents have engaged in family violence: s 61DA(2)(b). In this regard I would refer without more to the mention of past family violence in the chronology prepared by the independent children’s lawyer.
I am conscious that the family violence allegations are not recent.
Even if, for the sake of argument, the presumption did apply, in any event under s 61DA(4) I find the presumption rebutted by evidence, to which I will refer to below, that satisfies me that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them.
As mentioned earlier, the mother seeks an order that there be equal shared parental responsibility for the children.
The father seeks sole parental responsibility for the children’s education, medical and allied health and any other matters affecting the children’s long term care welfare and development, and that he keep the mother informed of his decisions by communication with the mother by registered post.
The independent children’s lawyer favours the order the father seeks.
Notably, the father does not seek sole parental responsibility for all of the “major long-term issues” (as defined: s 4). That is, he does not seek sole parental responsibility for the children’s religious and cultural upbringing, name or changes to the children’s living arrangements that may make it significantly more difficult for the children to spend time with the mother.
Section 61D provides that a parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authorities in relation to the child.
Section 61C(1) and (3) provide that each of a child’s parents has parental responsibility for the child; but subject to any order of a court for the time being in force.
The order the father seeks is not couched in terms of “the major long-term issues” concerning the children, so as to catch the full definition in s 4. Thus, although the order the father seeks includes “any other matters affecting the children’s long-term care welfare and development”, I read this in a general sense, so that if I were to make the order the father seeks, specific matters in the s 4 definition of “major long-term issues” not expressly included, such as the children’s religious and cultural upbringing, name or changes to their living arrangements that may make it more difficult for the children to spend time with the mother would remain the parental responsibility of both of the children’s parents, by the force of ss 61D and 61C(1) and (3), as not specifically included in the order the father seeks.
Ms N said in her second report that the parents have amply demonstrated they are unable to co-parent the children, and that there is no trust between the parents: par 113. Further, Ms N observed “there is no direct communication between [the father] and [the mother]”: par 114; and that (also par 114):
114. … Given their deeply embedded poor opinion of each other and their long standing history of conflict, it is assessed that it is extremely unlikely that within the foreseeable future these parents would be able to have logical, child focussed discussions and make joint decisions for [O] and [L]. (emphasis added)
Based on these observations and views, Ms N said further:
115. The information collated for this report indicates there would be more certainty for the children if [the father] remained solely responsible for decisions. This is not indicating that he makes better decisions than [the mother] – simply that by having one parent responsible for the decisions, the children are protected from the impact of parental conflict. The recommendation that he promptly advise [the mother] of any significant changes or important decisions is based on ensuring that [the mother] remains aware of developments that affect [O] and [L].
116. A significant factor in this matter is that both parents and both children have a degree of intellectual impairment. This makes it harder for all concerned to process information. (emphasis added)
Thus, Ms N favoured that the father “remain solely responsible for decisions” concerning the children.
In my view, children usually should have the benefit of the input and views of both of their parents making decisions for them in relation to significant matters affecting them.
Often, when it is considered to be in children’s best interests for one parent to have sole parental responsibility for making significant decisions, such is couched in terms of a requirement of consulting the other parent before making such decisions, and considering the other parent’s views, eg:
Prior to making any decision concerning either of the children in relation to any major long-term issue [the parent with sole parental responsibility] must:
a.advise [the other parent] in writing of the decision proposed to be made, setting out the advantages of the proposal perceived by that parent and reasoning supporting it, and seeking [the other parent’s] views in relation to the decision proposed, any perceived disadvantages of it or any other decision recommended in its place with reasoning for such
b.consider [the other parent’s] response before making the decision
c.advise [the other parent] in writing as soon as the decision is made.
However, in this particular case I am persuaded, largely by the matters discussed, and as observed by Ms N, of the parties’ long standing history of conflict, that there is no trust between them, and, most importantly, that “there would be more certainty” for the children if the father should be solely responsible for decisions, that such a mechanism as contemplated would not be in the children’s best interests concerning their education and medical and allied health, which in some respects, concerning the children’s difficulties as I have mentioned, may be likely to require more immediate decision than such a mechanism realistically might allow so that I would determine that the children’s best interests would be met by the order the father seeks, as I have said, supported by the independent children’s lawyer.
I will therefore make the order as sought by the father, supported by the independent children’s lawyer.
The time, if any, which by order the children should spend with the mother
Unsupervised time
It is convenient first to deal with the mother’s application that the children spend unsupervised time with her.
On the expert evidence which I accept, such would not be in the children’s best interests. I would refer in particular to the oral evidence of Ms N 20 November 2012, already set out.
Further, I am faced with further expert evidence, as detailed above, which I accept, that if there be unsupervised time with the mother:
a. the children’s emotional needs would not be met: Ms N’s second report, par 132
b. there is concern that the children would be unduly stressed by supervised visits: Ms N’s second report, par 132
c. the mother is more focused on B and has difficulty dividing her attention amongst the 3 boys: Contact Centre case notes; oral evidence Ms D; Ms N second report, par 134
d. it is a significant concern as to whether the mother would be able to manage O’s behaviour: Ms N’s second report, par 128.
Regrettably, despite the mother’s belief in her own progress and development, there is no current positive expert evidence that the mother’s parenting capacity has so improved that I should or could be persuaded that an order for unsupervised time for O and L with the mother could or would be presently in their best interests.
Accordingly, based upon all of the above matters, I find that for the children to spend unsupervised time with the mother, according to the mother’s proposal, or for less unsupervised time than in that proposal, would not be in the children’s interests.
Supervised time
On the expert evidence which I accept, I find the use of a contact centre is no longer in the children’s best interests.
I rely in particular on the oral evidence of Ms N that “the children are not coping with the supervised contact at the Contact Centre”, and that “the supervision option has ceased”.
Further, there is the evidence of Ms D, which I accept, that it is not in the children’s best interests for the Contact Centre to continue to provide a service for the children to spend time with the mother.
Further, Ms N said, which I also accept, that even if there was an option for further Contact Centre visits, it is a concern whether this form of contact is sustainable on a long term basis.
Regrettably, Ms N said further that in the past other supervisors have been used, also unsuccessfully. I would conclude, based on this evidence, that the use of some other or independent supervisor/s would not alter the problems identified by Ms D, as exhaustively explained above, as to why the time at the Contact Centre was unsuccessful.
Accordingly, based on all of the above matters, I find that to order that the children now recommence to spend supervised time with the mother would not be in the children’s best interests.
Mother’s alternative proposal for supervised time “building up to” unsupervised time
Ms N said as to “bridging the gap” between the mother and the children “I’m just trying to think what hasn’t been tried already”, “it’s a problem that stretches right back to when these boys were little”, and that already there has been “incredible input into the mother and into the children as well” such that she said “I could not see how you could move to an alternate weekend unsupervised arrangement for these boys”, that is to say, as I understood her evidence, that there was nothing that could be advised to “bridge the gap” or “build up to” unsupervised time, even for alternate weekends, by any strategy or “bridge” of further ordered supervised time, to “move” to unsupervised time.
No magic in a family report
As is well established, there is “no magic” in a family report. However, the views of Ms N, as the family consultant, are cogently supported by the independent evidence and observations of Ms D, and there is no evidence in the case to persuade me that in this particular case I ought not properly accept the family consultant’s recommendations.
Other matters
The mother, for reasons which she herself explained, does not invite an order for telephone communication between herself and the children.
The remaining orders sought by the mother in her response, and as qualified and reshaped during the trial, as earlier set out, are not ones which seem to me, in all of the circumstances and having regard to all of the evidence as being in the children’s best interest.
Conclusion
This matter is about the best interests of the children O and L, in particular whether prospectively there can be a meaningful and significant relationship between the children and the mother, unfortunately not presently existing, by ordering either unsupervised time, or supervised time, or a “build up” of supervised time to unsupervised time, as detailed above, but bearing in mind always that the children’s best interests is the paramount consideration.
Thus, whilst one of the objects of the Act is to ensure that parents are meaningfully involved in children’s lives, to the maximum extent consistent with their best interests: s 60B, this context demonstrates the paramountacy of the best interests of the children.
Orders
In my view, having regard to all of the evidence, the statutory matters which I am required to consider, the proposals, and the submissions of the parties and the independent children’s lawyer in support of their proposals, the children’s best interests will be met by the orders the father has proposed, as modified by the independent children’s lawyer.
As mentioned earlier, some of the independent children’s lawyer’s additional four proposals to some extent are overlapped with the father’s proposed orders. I have therefore further modified the orders so as to collate them into a cohesive whole, with stylistic but not substantive changes.
I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 31 January 2013.
Associate:
Date: 31 January 2013
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