Watkins and Dermott

[2019] FamCA 839

FAMILY COURT OF AUSTRALIA

WATKINS & DERMOTT [2019] FamCA 839

FAMILY LAW – PARENTING – where the Father has been spending supervised time with the children since 2012 – where the Father seeks orders for unsupervised time – where contact with the Father is triggering for the Mother

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Mulvany & Lane [2009] FamCAFC 76
Phillips & Hansford [2019] FamCAFC 165

APPLICANT: Mr Watkins

RESPONDENT: Ms Dermott

INDEPENDENT CHILDREN’S LAWYER: Ms Hill

FILE NUMBER: CAC 589 of 2010

DATE DELIVERED: 17 October 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 14-16 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S Leslie

SOLICITOR FOR THE APPLICANT: Denniston & Day Lawyers

COUNSEL FOR THE RESPONDENT: Mr G Stagg

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Haddock

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Tarella Law

Orders

1. All previous Orders are discharged.

2. The Mother has sole parental responsibility for the children, X, born … 2006, and Y, born … 2008 (“the children”).

3. The children live with the Mother.

4. The Father is permitted to spend time with the children from 10am until 12pm on a date nominated by the Mother in writing prior to the end of Term 4 2019;

5. The Father is permitted to spend time with the children on the first Saturday following the commencement of each NSW school term in the following manner:

   (a)Term 1 and Term 2 2020, for a period commencing at 10am and ending at 12pm;

   (b)Thereafter commencing at 10am and ending at 4pm.

6. Handovers in relation to Orders 4 and 5 are to be facilitated by the children’s contact centre in Town A.

7. The Mother shall authorise the children’s schools to provide copies of the children’s school reports to the Father. 

8. The Mother is to provide any relevant authority to any health care professional so as to authorise that person or health care facility to provide to the Father the health records in relation to the children. 

9. The Father is permitted to send the children cards, letters, gifts and photographs and the Mother is at liberty to inspect the items provided and shall provide those she determines are appropriate to the children. 

10. Within 7 days of the date of these Orders the Mother shall provide to the Father a postal address (which need not be her own postal address) to which he may send cards, letters, gifts and photographs to the children in accordance with Order 9 and shall provide the Father with an updated address within 48 hours of any change to the address.

11. The Father is not to denigrate the Mother or the Mother’s partner in the presence of the children or discuss any matters related to the current proceedings with the children or with a third party in the presence of the children save for the content of Order 5.

12. It is requested that the Independent Children’s Lawyer meet with the children promptly to explain the outcome of the court proceedings and the orders made.

13. The Independent Children’s Lawyer is discharged 29 days after the delivery of this judgment.

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

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

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 589 of 2010

Mr Watkins

Applicant

And

Ms Dermott

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties in these proceedings are Mr Watkins, the Applicant Father, and Ms Dermott, the Respondent Mother.  The parties commenced cohabitation in 2005 and separated in 2009.  There are two children of the relationship, X, born in 2006, and Y, born in 2008 (“the children”). 

2. The Mother and her new partner, Mr B, have one child, Z, born in 2011. 

3. This matter was the subject of a final hearing with judgment delivered in the Federal Circuit Court in December 2012.  That determination provided for the Father to spend time with the children on a supervised basis four times each year for a period of three years.  The Orders also provided for the possibility of a review of the arrangements on the basis that the Father undertook various courses directed to particular issues.  The Father has conducted anger management and parenting courses.  He then reapplied to the Federal Circuit Court in 2017.  The matter was transferred to this Court and then listed for hearing for three days commencing 14 October 2019.

4. For the further hearing of this matter the parties agreed that they were bound by the findings made by the Federal Circuit Court at the first hearing.  In dealing with such, it is necessary to recollect that the principles of issue estoppel do not have strict application in children's proceedings, however, a common position of the parties is highly persuasive that such previous findings be relied upon.  Those findings were, however, limited in scope.  However, the matter was simplified by the joint position of the parties that they sought no fact finding as to matters that arose prior to the previous hearing.  Those matters covered highly contentious allegations of wrongdoing against the Mother, and of concoction and false allegations made by the Father.  The parties accepted that on the state of the evidence I would not be able to make fact findings in relation to either and also that it was not necessary for me to do so to resolve the proceedings. 

5. In line with this position the parties concentrated their attention on what has occurred since the previous hearing of the matter. 

6. In summary form the orders sought by each of the parties were as follows:

   a)The Father sought that the Mother have sole parental responsibility for the children and that the children live with her.  The Father sought to spend time with the children in a graduated manner moving from once per month for a period of two hours to twice a month with overnight time.  The Father softened his position at the end of submissions, saying that he would only move to overnight time if the children agreed.

   b)The Mother sought sole parental responsibility for the children and that the children live with her.  The Mother sought that the Father be permitted to spend supervised time with the children four times per year.  The Mother also sought that the Father and paternal grandfather be able to send the children cards, letters, gifts and photographs (those that Mother deemed appropriate).

   c)The Independent Children's Lawyer (“the ICL”) sought that the Mother have sole parental responsibility for the children and that the children live with her.  The ICL further sought that the Father spend no time with the children but that he be permitted to send them cards, letters, gifts and photographs (those that the Mother deemed appropriate).

Legal Principles

1. Pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Family Law Act”), the best interests of the child are the paramount consideration in determining what parenting orders should be made.  That means, when I am deciding what orders to make in this case I need to focus my thinking on what would be in X’ and Y’s best interests.

2. Deciding what is in the best interests of a particular child is to be done by a consideration of the matters set out in s 60CC of the Family Law Act, and in accordance with the objects and principles set out in s 60B.

3. As no party has asked me to make any orders different to the other about parental responsibility, the presumptions in s 61DA and the reasoning process in s 65DAA are not relevant here.  

4. What I have been asked to decide is what time, if any, X and Y should spend with their Father and what that time should look like.  

5. In the recent Full Court case of Phillips & Hansford,[1] Justices Strickland, Ainslie-Wallace & Aldridge explained that the considerations in s 60CC are “not a mantra to be recited in every case”. Rather, their Honours said that “only those that are in issue in the proceedings require detailed consideration”.

   [1]Phillips & Hansford [2019] FamCAFC 165

6. The parties set out for me in much the same manner as each other the issues that they said were in contest, in the context where it is undisputed that the Mother will have sole parental responsibility and be the primary carer.  Those issues can be summarised in this way. 

7. Firstly, the assessment of the benefits that the children will get from a relationship with the Father which brings into play s 60CC(2)(a). Secondly, an examination of the risk of psychological harm to the children by:

   a)Exposure to the Father's negative attitude to the Mother;

   b)Exposure to the Mother “falling apart”, that is, her emotional or psychological fragility, vulnerability and distress and panic as triggered by the Father; and

   c)Exposure to the Father's negative attitude to authorities.

8. Predominantly those questions bring into play variously ss 60CC(2)(b) and (3)(b), (d) and (f).

9. Thirdly, I was asked to pay particular attention to the views of X and Y which brings into play s 60CC(3)(a).

10. The first question to be asked then is what does a relationship with the Father potentially bring for X and Y.  Or rather, as has been set out in Mulvaney & Lane,[2] what was the benefit to X and Y of having a meaningful relationship with their Father.  That is, a relationship that is important, significant and valuable. 

    [2]Mulvany & Lane [2009] FamCAFC 76

11. I was urged by both the ICL and the Mother to be circumspect about the benefits of a meaningful relationship with the Father.  Currently X and Y have only a limited relationship with their Father, about which they both express a desire to continue.  That relationship is limited by virtue of the manner of the conduct of the relationship.  That is, it has been supervised for many years now and it occurs on only limited occasions. 

12. The benefits identified by the Single Expert of relationship were referred to in a general sense.  That is, that it is generally beneficial for children to know their biological parents, that children will have things in common with their Father, an ability to explore those things and be exposed to a different point of view and thirdly, that there are benefits to children in being exposed to more people who love and who are interested in them. 

13. These benefits were expressed generically but with the inference that they were applicable in this case to X and Y.  The particular extent and significance of such was not addressed, nor were particular characteristics of X and Y and the Father addressed such as to identify the quality or quantity of benefits, save this, that when the Father attended on X and Y in the presence of the Single Expert she was able to observe that the Father was able to transition in his dealings with X and Y to a child focused approach, notwithstanding the difficulties that were apparent in those interactions with X and Y in the presence of the Single Expert.

14. At best in this case the benefits of relationship with the Father are established as no more than limited.  It may be expected that the prospects of those benefits remain quite limited if supervised contact was to continue, but are enhanced in the eventuality of improving relationships in an unsupervised context.

15. The question arises as to how those benefits would be impacted by the different forms or restrictions of time of the Father.  If it was to be ongoing supervised contact at the Children's Contact Centre in Town A, firstly, the Father was quite clear he does not want to do that.  He prevaricated about whether he would do that and ultimately I cannot accept that it is likely that he would continue to see the children if arrangements were made for supervised time, as he accepted that the reality is that he would not do so.  The contact centre comes in the added context that X is saying that she is becoming too old for the centre and it may be anticipated that the centre is on the cusp of being inappropriate for these children, particularly in a context where such supervision only allows a very restricted relationship, the results of that being observed by the Single Expert, and particularly where the contact centre is an environment that the Father sees as being hostile to him. 

16. Relationship with the Father brings some potential detriments to the children which qualify the benefits or reduce the benefits or pose risks to them. 

17. The first relates to the exposure to the Father's negative attitudes to the Mother.  That has a number of different facets.  Firstly, it runs some risk of undermining the children's relationship with the Mother, although it may be anticipated that the children would be able to resist such an effect.  That risk of undermining could come from the Father choosing to criticise the Mother in the presence of the children.  There is reason to think that he might do so.  He is deeply resentful, hostile and suspicious in his attitude towards the Mother. 

18. There is also a risk of other adverse psychological impact coming from exposure of the children to the attitude the Father holds towards the Mother.  That is, if the Father was to begin again to expose the children to reports made against the Mother and Mr B to authorities, to make notifications to the police, to FACs or DOCS.  Those featured as a part of the Father's conduct in the lead up to the 2012 hearing but were put to an end by those orders.  It may also be thought that the supervised regime that has been in place since then has ameliorated the risk that he would do so because it dictated to a large extent the form of the interactions he has with the children. 

19. Against the idea that there is an ongoing risk, the Father says that the children are now of an age that they can speak up for themselves rather than have him speak up for them.  He has articulated an attitude that he needs to think further before he takes any such steps in future. 

20. However, if further complaints were made by the Father, as may be fuelled by his attitude as set out above, and if those complaints were unjustified they have a potentially strong adverse impact on both the Mother and his children (see the references of the Single Expert to such a possibility).  Those were seen to be of such a grave risk as to mean that, if they were to occur, that the Single Expert recommended that that would be an end to the time that the Father would spend with the children.

21. There is still a pointer remaining as to the risk that the Father might engage in that conduct which comes from his underlying attitude which provides an environment which shows a motive to complain or undermine the Mother.  It will require a restraint which was not exercised by the Father when he spoke to the Single Expert.  I am not given confidence by the Father's assertions that he would need to think first before making complaints, nor particularly by the gap in complaints that corresponded to the supervised time.

22. A further negative consequence, or potential negative consequence, for the children spending time with the Father is the impact that this will have on the Mother and the flow on impact that that will have in turn to the children. 

23. I pause to observe that the Mother, along with Mr B, has done a very good job of raising X and Y.  They are growing up well and it seems that in large part she has been able to shield them from the issues between herself and the Father.  It was clearly evidenced by the fact that the children did not really know why they were seeing the Father in a contact centre.  That evidenced reasonably clearly that the Mother has done her best and has largely been successful in shielding them from a conflict between the parties. 

24. There was limited evidence before me as to the Mother’s psychological state.  The key issue, however, is not so much a psychological diagnosis, but rather an understanding of the manner of the Mother's response to her circumstances.  The Single Expert,[3] in conducting psychometric testing of the Mother, noted that there are considerable issues in relation to stress, anxiety and coping and that the result of those for the Mother were that, if they continued, they would affect her parenting.  While it is appropriate to exercise some caution in drawing conclusions from the demeanour and manner of giving evidence of the witness, the manner of the Mother’s giving of evidence in these proceedings was still informative, as it was redolent of significant stress and distress connected to the prospects of the Father spending time with the children and behaving adversely towards them and her. 

    [3] [51]

25. Although the Mother had previously entertained that there would be a transition to the Father having more time with the children and had in fact facilitated such in the lead up to this hearing and had entertained that it would transition towards unsupervised time, she now does not and she puts forward for that what she says is now a complete lack of trust in the Father.

26. Although the Single Expert thought that there was always a lack of trust, it may be observed that the lack of trust has bloomed in the context of what the Father chose to raise with the Single Expert in the interview, including raising the notion that the Mother had sexually assaulted him, resulting in the birth of their children and that Y perhaps was not even his, along with a rehash of the allegations against the Mother.  Whether or not those allegations were true or untrue, the rehashing of them shows that a latent hostility and resentment in the Father still persists, which is indicative, despite his protests otherwise, that these are not in the past for him.  It is in that context that the Mother has displayed significant distress.  That is a distress that has been described by her and corroborated by her partner, Mr B, as a frequent occurrence leading up to this Court hearing.  On either of their descriptions it is debilitating, it is traumatic and one would expect that if the children saw it, it would be unsettling for them and disturbing for them.

27. It appears to be that the trigger for such is the Father.  Accordingly, it can be anticipated that if orders are made for unsupervised time there will be a triggering of the Mother.  And while the Single Expert thought that may abate over time, a solid foundation so as to render that abating a likelihood was not identified.  Despite heightened distress the Mother insisted that she would be compliant with whatever orders were made, that she would work to deal with her distress because in her view her distress is not her children's issue.  The Mother accepted that she doubted that she would in fact be able to manage that distress.  That is, despite the supports (professional and otherwise) that she has relied upon there remains doubt as to how well she will be able to manage her distress.  That distress will directly impact on the children if it is in their presence and there are prospects that will occur despite the best efforts that Mr B and the Mother might make to distract and shield the children from her distress.  It will also have an indirect impact on the children because it will seriously tax the Mother's personal reserves as the primary carer.  So it can be anticipated that there will be an increased triggering of the Mother if there is a move to unsupervised versus supervised, and increasing trigger with the occasions on which the visits with the Father happen.  That is, the higher frequency the more frequent the triggering and the more frequently the children might be expected to be exposed to that distress.

1. The third aspect of potential detriment of time with the Father was raised by the ICL as being exposure to the Father's highly negative view of authorities, for example the police and welfare.  I do not think that plays a significant role in this case.  His views are not the only views that the children are exposed to.  I anticipate that their primary exposure will be to the Mother and to Mr B.  If they are imbued with some suspicion of authorities it is not a matter of great weight.  Human institutions may be observed to be inherently fallible.

2. The third matter is the views of the children.  Ms D, who prepared an earlier report, recorded that X was comfortable with the frequency at that time and fine with an increase, but not with going to the Father's house because she said that she did not really know the Father.  Y said at that point, effectively, that he would be happy to see the Father a couple of more times each year but that he was not then sure about how he felt about it happening outside the contact centre. 

3. The Single Expert’s report which was prepared much closer to the trial also recorded comments made by the children.  X said “I wanted the same as it is now."  She had some uncertainty about being unsupervised but entertained the possibility of activities such as going for lunch with her Father.  It may be observed that that would allow a much more natural environment.  X remained concerned about going to the Father's home but that was interpreted by the Single Expert as being a concern on X’ part about the possibility of transition to overnight, which she definitely did not want.  Y said that he would want to “see him the same amount."  By that stage, Y was seeing the Father more frequently than the quarterly visits that had previously been provided for.  Y was open to not using the contact centre but was “very worried" regarding overnight time, explaining that he would be worried and angry if the Court made orders for overnight time.

4. As I have already observed, and to the Father's credit, he relinquished the pursuit of overnight time other than in accordance with the children's wishes.  The context of those views was described by the Single Expert as the children being curiously indifferent about their limited relationship with Father, but the Single Expert assessed them as mature and thoughtful and said that their ages, maturity and ability to articulate, which I infer means ability to explain what they want and why they want it, suggested that considerable weight should be given to their views. 

Discussion and conclusion

1. There are considerations pointing in different directions in this case.  There is only evidence of limited benefits of relationship with the Father, although those benefits themselves, even if they are generally applicable, are important benefits.  Against that there is a risk of adverse influence by the Father upon the children.  More significantly than that, the Father's ongoing interaction with the children has the prospect which is made real by the Father's comments to the Single Expert, that he may act adversely to the Mother and the children and that prospect has a serious and deleterious impact on the Mother who has the primary relationship with the children and who is responsible for their care.  She is triggered by the Father and is susceptible to periods where she is unable to function by virtue of a strong emotional reaction, what she described as panic attacks.  That would be more pronounced if it is more frequent and also more pronounced if it was unsupervised.  Despite the benefits, that factor pushes towards the supervised only time proposed by the Mother or the no time proposed by the ICL.  There is, however, another strong factor pushing to time with the Father.  That is the views of the children. 

2. What is the appropriate balance of these factors in making orders that are in X’ and Y's best interests?  There is no easy balance.  The Father's ongoing resentment towards the Mother has seriously undermined his case.  Despite that, it is appropriate, in giving weight to the children's views, to continue an opportunity for the children to have relationship with their Father. 

3. The choice comes down to one of the nature of that time and the frequency of that time.  While the Father acknowledged that he was unlikely to continue if it was supervised, that is not pivotal to my determination.  If I made an order for supervised time and the Father did not attend, then the cessation of that relationship would be a matter for his choice. 

4. However, the anticipation of, and being open to the prospects of, unsupervised time, with the better potential to foster the relationship with the Father in a more natural setting and so better opportunity to reap the at least general benefits that the Single Expert pointed as coming with unsupervised time, those point to there being unsupervised time with the Father. 

5. However, the impact upon the Mother, and therefore the children, of the Father and the children spending unsupervised time together requires significant amelioration which is to be achieved by orders about the duration of that time and the frequency.  That balance is met by orders that provide for the children to spend time with their Father four times per year in accordance with the sort of frequency that was proposed by the Mother.  Practicalities dictate that there can be no expected interaction between the parties as that would potentially trigger the Mother further.  Changeover, unless otherwise agreed, will occur at the contact centre. 

6. There is a practical problem because there is no means of having contact between these parents, but the occasion and the duration of the time that the Father will spend with the children reduces the need for such, so that the lack of a means of contact is insufficient to displace this arrangement.  It remains a prospect that the Father may make unjustified complaints about the Mother or undermine her to the children.  Such raises the prospect of further litigation, as if such was demonstrated, given the issues in this hearing, it must be clear to the Father that it will be likely to end any time that he has with the children.  Through his counsel he seemed to accept as much and his acceptance of that is protective against such behaviour.

7. While the Mother sought restraints such as not approaching within a kilometre of work or the children’s schools and the like, I am unable to discern the practical impact that would go with that, for example whether it would exclude the Father from the entire central business district of Town A.  I was not addressed on the necessity or justification for the restraint sought, particularly in the absence of fact-finding as to the past between these parents in relation to the pre-2012 issues.  Under those circumstances the restraints should not be imposed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 17 October 2019.

Associate: 

Date:  14 November 2019