Watkins and Dermott
[2012] FMCAfam 1301
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WATKINS & DERMOTT | [2012] FMCAfam 1301 |
| FAMILY LAW – Parenting relationship completely fractured and characterised by ‘tit for tat’ contests – regular reports to authorities of alleged abuse by father against mother – good relationship between father and young children – ongoing time between father and children at contact centre – mother seeks ‘no contact’ order – finite supervised time at contact centre to be followed by review by family consultant. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC(2), 60CC(3)(c), (i), (g), 61DA, 65DAA |
| Champness & Hanson (2009) FLC ¶93-407 Goode v Goode (2007) 36 Fam LR 422 Langmeil & Grange (2010) FLC ¶93-427 Lindsay & Baker [2012] FamCAFC 189 McCall v Clark (2009) 41 Fam LR 483 Maluka v Maluka (2012) 45 Fam LR 129 Marsden & Winch CF 65 of 2004: unreported 21st November 2007 Mazorski v Albright (2008) 37 Fam LR 518 Quincy & Roberts [2011] FamCA 840 Schaeffer v Jacobs (2011) FLC ¶93-468 Sigly v Evor (2011) 44 Fam LR 439 |
| Applicant: | MR WATKINS |
| Respondent: | MS DERMOTT |
| File Number: | CAC 589 of 2010 |
| Judgment of: | Neville FM |
| Hearing dates: | 28 & 29 May 2012 |
| Date of Last Submission: | 21 June 2012 |
| Delivered at: | Canberra |
| Delivered on: | 7 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Counsel for the Respondent: | Ms J Godtschalk |
| Solicitors for the Respondent: | Legal Aid NSW (Wagga Wagga) |
| Counsel for the Independent Children’s Lawyer: | Mr G Blank |
| Independent Children’s Lawyer: | Ms E Hill Skinner & Associates (Albury) |
ORDERS
All previous orders are to be discharged.
The Mother have sole parental responsibility for the children.
The children live with their Mother.
The Father be permitted, and the children’s schools be authorised to provide, copies of the children’s school reports to him.
The Father be permitted to spend time with the children, for the maximum time permitted by the children’s contact centre in (omitted) four times per year, once per each school term. Each visit is to occur on the first weekend of the commencement of each school term. This order is to remain in place for three years.
For each of these three years, the Father is to undertake and to provide to the Court evidence of having completed a parenting course, with an emphasis on post-separation parenting and on anger management. If this evidence is not provided there will not be any review as noted in these orders.
Other than the children’s time with their Father at the contact centre in (omitted), the Father be restrained as follows:
(a)from approaching, contacting or attempting to contact Ms Dermott or either of the children by any means whatsoever including through third parties;
(b)from approaching Ms Dermott or either of the children or their place of residence or her place of work or within 1 kilometre of same.
(c)from approaching within 1 kilometre of any school, pre-school, day care centre or other service attended by the children at any time.
At the conclusion of the three year period, the head of the family consultants at the Court in Canberra is requested (a) to review the notes from the contact centre for the previous three years, and the evidence in relation to the Father having completed the courses ordered, and (b) to meet with each of the parents separately following the review of the notes from the contact centre. If there are any relevant records from the Department of Community Services (“DOCS”) and or the police to which the consultant should have regard from the same period, those records too should be consulted. The family consultant who does this review is further requested to provide a note to the Court as to whether the matter should be re-listed to see whether any increase in time between the children and their Father should be permitted.
The Father and paternal Grandfather are each permitted to send to the children cards, letters, gifts and photographs. The Mother is to check whether such items are appropriate and then, if so satisfied, provide them to the children.
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. Otherwise, the Mother is to advise the Father by letter only, and the Father is restrained from responding in any way, of decisions in relation to any major long-term issue in relation to the children.
The ICL be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Watkins & Dermott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 589 of 2010
| MR WATKINS |
Applicant
And
| MS DERMOTT |
Respondent
REASONS FOR JUDGMENT
Introduction
In her most recent submissions, filed 20th June 2012, the independent children’s lawyer (“the ICL”) submitted (at par.12): “The ICL acknowledges that this is a tragic case. Mr Watkins appears to have a good relationship with both children [a son now aged almost 6 years and a daughter now aged 4½ years]. However, unfortunately due to his behaviour regarding Ms Dermott [the Mother], the ICL is unable to recommend time, even on an irregular basis each year.”
In response to questions put by the Court, the ICL confirmed, in the alternative to her principal position, that she would support a very limited regime of time between the children and their Father supervised at a contact centre.
Most reluctantly, to a significant degree, the Court agrees with the submissions of the ICL. However, the Court does not agree with the ultimate and primary submission that the children spend no face to face time with their Father. Because the Court can and must make orders that are in the children’s best interests, and that those interests are the paramount consideration, and also accepting the Court’s protective responsibilities to the children, in my view it would not be in their best interests to be completely excluded from direct, face to face time with their Father.[1]
[1] On the requirement to have regard to the children’s best interests, see s.60CA of the Family Law Act 1975. On the Court’s protective responsibilities towards the children, see, among other places, s.60B of the Act and Brown J’s comments in Mazorski v Albright (2008) 37 Fam LR 518, especially at [3] – [6] and [20] – [26]. Her Honour’s remarks have been consistently cited with approval by the Full Court, for example in McCall v Clark (2009) 41 Fam LR 483; Sigly v Evor (2011) 44 Fam LR 439; Maluka v Maluka (2012) 45 Fam LR 129; Schaeffer v Jacobs (2011) FLC ¶93-468, to name only some of the ever-growing appellate authority.
As the Court now orders, the Father’s time will be significantly reduced, and absent any agreement in writing between the parties (and sanctioned by the ICL), it will continue to be at a contact centre for a significant period of time, at the end of which there will be a review of the arrangements by a family consultant. I acknowledge that this will be an imposition for all, and I also recognise that, as others have noted, there must be a degree of artificiality about time with a parent at a contact centre. However, given (a) how young the children are, (b) the uncontested good relationship between the children and their Father, and (c) the Court may accept, as a general proposition, that children, as they grow, will usually adopt certain protective responses, in my view it would be a ‘bridge too far’ to make a ‘no contact order’ on the facts of this case at this time. The potentially adverse risks of such an order on the children in never spending time with their Father must take precedence, in my view, over the understandable sensitivities of the Mother as well as the difficulties associated with spending time between the Father and the children at a contact centre for a prolonged period of time.
What follows are the reasons for the orders which scale back to a significant degree, for protective reasons primarily of the Mother so as to enable her to continue to be the children’s primary carer without undue harassment from the Father, the time the Father spends with the two children involved, X (aged almost 6 years) and Y (aged 4½ years).
Orders Sought
The Father seeks the following orders[2]:
[2] These orders were attached to the affidavit of Mr Watkins filed on 23rd May 2012.
1. X and Y are to live with me, the Father Mr Watkins, 50% of the time. The other 50% of the time with their Mother, Ms Dermott.
a) 7 days and 7 nights with me the Father.
b) 7 days and 7 nights with the Mother.
2. Should the Court not grant to first order, then X and Y are to reside with me on alternate weekends from Friday afternoon after 3 pm until 8.30 am n the Monday morning. I am to pick up and drop off the children to the school. Until Y is attending school himself, his Mother, herself, is to bring him to X’ school in time for the pick-up and present herself on Monday morning for drop off. Both parties must be civil, each to the other, during any contact at these times.
3. X and Y are to spend at least half of each school holiday period with me, Mr Watkins.
4. No one else, other than the Father, Mr Watkins, or the Mother, Ms Dermott, are to look after the children overnight or for any period greater than one day, without consultation with the other parent, or else the approval of the Court.
5. That I be able to attend interviews with my children’s teachers and doctors.
6. That I receive copies of all of my children’s school and medical reports.
7. That the children spend Father’s Day with me, Mr Watkins.
8. That the children spend Mother’s Day with their Mother, Ms Dermott.
9. That the children spend Christmas Day half with me and half with their Mother.
10. On the occasion of X and Y’s birthdays that they spend half the day each with their Mother and their Father, or alternatively, that the children spend the day of their birthday with one parent and another nearby day with the other parent for the purpose of celebrating their birthday.
11. That should I meet my children casually in the street, I be at least permitted to day “Hello” and enquire after them.
The Mother seeks the following orders:
1. That all previous Orders made in this matter be dismissed.
2. That the Mother have sole parental responsibility for the children, X born (omitted) 2006 and Y born (omitted) 2008 (“the children”).
3. That the children live with the Mother.
4. That pursuant to Section 68(b) of the Family Law Act 1975, Mr Watkins shall be restrained as follows:
a) From approaching, contacting or attempting to contact Ms Dermott or either of the children by any means whatsoever including through third parties;
b) From approaching Ms Dermott or either of the children or their place of residence or her place of work or within 1 kilometre of same.
5. That the Mother provide by post to the Father on three occasions each year copies of the children’s school reports and medical reports on any significant health issues relating to the children.
The Independent Children’s Lawyer seeks the following orders:
1. That all previous parenting Orders in relation to X born (omitted) 2006 and Y born (omitted) 2008 (“the Children”) are hereby discharged.
2. That the Mother have sole parental responsibility for the Children.
3. That the Children live with the Mother.
4. That by injunction pursuant to s68B Family Law Act 1975, the Father is hereby restrained from spending any time with or communicating with, the Children.
5. That by injunction pursuant to s68B Family Law Act 1975, the Father is hereby restrained from:
a. Harassing the Mother;
b. Contacting the Mother;
c. Attending within 200 metres of the Mother’s place of residence;
d. Attending within 100 metres of the Mother’s place of work; or
e. Attending any place at which either child attends, at a time that child could reasonably be expected to be present.
6. Despite orders 4 and 5, the Mother is authorised and required by these orders to advise the Father by letter sent by the Mother within 7 days of any of the following occurring, of:-
a. Any preschool or school each child attends, together with contact details for each school;
b. Any medical emergency which requires hospitalisation of at least one night suffered by either child;
c. Any medical condition requiring specialist review suffered by either child;
d. The contact details of each child’s General Practitioner and any other treatment providers a child may attend from time to time.
7. The Mother must, as soon as is reasonably practicable, do all things necessary to authorise and enable:
a. Any preschool or school each child may attend to provide information to the Father including but not limited to copies of school reports, examples of school work, school newsletters, school photo order forms and all such information that parents normally receive;
b. A child’s general practitioner and any other treatment provider to provide information about that child’s health, treatment or other matter the provider deems relevant, to the Father.
8. That the Father and paternal grandFather each be permitted to send to the Mother age-appropriate letters, cards, gifts and photographs and subject to the Mother being satisfied that the items are appropriate for the Children, she will give them to the Children.
9. That the Mother and Father, within 14 days of any change of postal address, must advise the other, by letter, of that change
10. That the Independent Children’s Lawyer be discharged.
Summary of Evidence
The children have been living with their Mother since separation in June 2009.
Pursuant to orders made on 26th November 2010, the Father has been spending supervised time with the children at a contact centre in (omitted) for two hours every second Sunday.
In addition to the affidavit material of the parties, the Court has before it the following, significant documentary evidence:
·Three reports from the Family Consultant, dated 20th August 2010, 4th July 2011, 2nd April 2012 (Exhibits A1-3)
·A psychiatric report from Dr K, dated 6th June 2011 (Exhibit B)
·Notes from the (omitted) Children's Contact Service (“CCS”) in relation to both parents (Exhibit F)
·Combined records from the NSW Police and the NSW Department of Community Services (“DOCS”) (Exhibit G)
Counsel for the Mother and for the ICL relied heavily on the notes from the CCS. I understand and accept their reliance on this material.
In my view, the content of the notes from CCS, as well as the information contained in the material from DOCS and the NSW Police is strongly determinative regarding the orders to be made that are in the children’s best interests, pursuant to s.60CA of the Family Law Act1975 (“the Act”). While not rendering the parents’ testimony superfluous, or that of the experts (Ms D and Dr K), having regard to the limited evidence of the parents, to a very significant degree the documentary evidence is almost dominant. Accordingly, the greater focus in these reasons is on that evidence.
Further, the documentary evidence plays a particular role in the current matter because Mr Watkins consistently claimed throughout the proceedings (including his final written submissions, filed 20th June 2012) that (a) investigations conducted by either the Police and or by DOCS in relation to allegations he raised against the Mother involving the children, as well as other matters (such as burglaries, various assaults, death threats, etc) were flawed (or not even investigated), and (b) that the CCS was biased against him and manufactured false notes to reflect badly on him.
Should it need to be stated, and noting that I cautioned Mr Watkins (a self-represented litigant) during the trial about making such allegations, formally I find that there is no substance to any of the allegations against DOCS, the Police and most particularly, against the CCS as alleged by Mr Watkins.
The documentary evidence also assumes significant moment in this matter because there was very little challenge to the Mother’s evidence by Mr Watkins. In such circumstances, in my view, the Court should have particular regard to independent evidence, such as that contained in the documents from the Police and DOCS. While not accepting their contents uncritically, their third party or independent status is very important.
In order, I will deal with (a) the records of DOCS and the NSW Police, (b) the records from CCS, (c) the Report of Dr K, (d) the reports from Ms D, and (e) the evidence of the parties. Necessarily, and unless otherwise required, I set out the detail from each of these sources in a somewhat summary manner.
Documentary Evidence from Department of Community Services
The first relevant record, date 12th February 2010, concerned a report of alleged abuse in relation to the children, but when observed by persons from the Department, there was no evidence of the abuse alleged but rather mosquito bites and bruises on arms and legs (e.g. shins, knees and elbows) that were symptomatic of children having been at play. The same report records the Departmental officer confirming to the informant the importance of ensuring (a) prompt reporting and, (b) accurate information.
This same report also records the Mother as being “sick of this” and that the process [involving the Department and the Court] was “horrible and embarrassing.”
The second record is dated 28th April 2010. In it there are allegations by Mr Watkins that three males together with Ms Dermott’s brother went to his residence to beat him up. He said that he was not badly injured. Mr Watkins also alleged that Ms Dermott went out to his place during the night yelling at him. In relation to both events, Mr Watkins confirmed that he did not call the police because they would not believe him. He is recorded as saying that “the police are just a waste of tax payer’s money.”
The same record notes that, in his view, Mr Watkins does not need to attend any parenting courses.
On 14th May, the next record, there are allegations that Ms Dermott had been out at (omitted) (the town where Mr Watkins lives) when Mr Watkins’ residence was being ransacked, even though she was able to provide confirmation that at the relevant time she was shopping in (omitted) with her Mother. She provided receipts which confirmed date and time as being in (omitted).
The next record is also dated 14th May. It notes the Department’s concerns about Mr Watkins’ state of mental health.
The next record, dated 18th May, is particularly significant. It records that Mr Watkins’ allegations of an assault (noted briefly above) were inaccurate as to dates and times. He said that he did not report the incident immediately because he was afraid to leave his house. Mr Watkins had contended that he was assaulted by Ms Dermott, her sister and three men, and that they held a .22 gun to his head.
The record, dated 23rd June 2010, concerns multiple allegations. For example, there are contentions in relation to a telephone call said to have been received by Mr Watkins' Mother to the effect that Mr Watkins had been shot and that she will never see him again.
There is another allegation that Mr Watkins attempted to run down Ms Dermott. There is recorded the Department’s concerns about whether Mr Watkins might be ‘stalking’ Ms Dermott, and also that Mr Watkins believes that it is the Department’s doing to prevent him from seeing the children. The records also note [again] the concern of the Department about the mental health of Mr Watkins and the risk that he poses to Ms Dermott.
The final record, dated 11th April 2011, deals with an incident in the bath with one of the children (Y) slipping and sustaining an injury. Mr Watkins alleged that the injury, when he saw it, was consistent with some form of abuse from the Mother.
Police Records
Sequentially, the following matters are noted from the records produced under subpoena from the NSW Police.
The first record deals with allegations of damage to the Father’s property in August and September 2009, as well as the police giving the Father certain general advice at the same time in relation to the conduct of, and risks associated with, his pursuit of the litigation in this Court in relation to his children. The records note: “It became apparent that he [the Father] did not have any idea about his rights to property and access to his children. He was spoken to at length about these issues. The Victim came across as a non violent person who has been given poor advise [sic] from outside organizations.”
The relevant record notes that the view of the police was that there was insufficient evidence to proceed with any formal action in relation to the allegations raised.
The next incident, dated January/February 2010, deals with, among other things, the allegations concerning bruising to the children and the Father’s attempts to report it to the Department. The police records note that the Father ‘is getting frustrated with the system and having access to his children.’ The police say that they are ‘working closely with the Father in an attempt to keep him on track with the appropriate methods of gaining access and communicating with his children.’ At the same time, the police note that the Mother feels harassed by the Father, particularly by his reports of abuse of the children.
In the records dated May 2010, the police confirm the discrepancy between the Father’s account of events surrounding allegations of damage to his property caused by the Mother, when she was able to produce shopping receipts that confirm that she was not at the Father’s property at the time alleged. Further, the police confirm that they have CCTV footage that again confirms the Mother being at a particular shopping mall in (omitted) at the time of the alleged incidents.
The police records simply state: “To say the credibility of the [Father] is extremely low is an understatement. … The authenticity of the entire situation is in question, and no reliance can be placed on the [Father’s] version at all. … It is obvious that the stresses he is experiencing have clouded his judgments in regards to this matter.”
In a slightly earlier record, dated 9th November 2009, the police notes state: “On police assessment there was no concerns that mental health issues in relation to the [Father].”
There is a very detailed record dated 13th May 2010 in relation to the Father’s alleged assault by Ms Dermott and others, and which was said to involve a gun being pointed at his head. While there is no formal finding in the records tendered, there are a number of comments that confirm the police had doubts about the reliability of the Father’s account of events, such as: “… police noticed there was no blood on the shirt at all. Police found this strange as the victim stated his nose had been bleeding.”
In August 2010, the police records highlight the Father’s history of serious allegations, and on this occasion the serious ransacking of his residence. The records do not offer an explanation for the damage to the Father’s property in the circumstances.
Next, in September and October 2011, the police deal with allegations of death threats to the Father, and which are alleged also to have involved or referred to the children, as well as some malicious damage to his property. As the police note, the Father could not explain what the Mother had to gain by perpetrating this damage and or from [allegedly] threatening her own children.
In January 2012, the police considered another allegation, this time by the Father that there had been some abuse of the children by the Mother. Again the police conclude their record by stating that “no further police action will be taken.”
The final police record as part of the tender is also dated January 2012. It dealt with some writing that was said to have been written on the windscreen of the Father’s car, to the effect that he and his family will be ‘shot dead.’ The police simply note that they are unable to establish who wrote on the windscreen of the Father’s car.
Records from Children’s Contact Centre
These records are in two parts: notes that concern the Mother, then those that concern the Father and his family.[3]
[3] I should record that, most unfortunately, the paternal Grandmother died in late 2011 or early 2012. She featured somewhat prominently in the course of the litigation as a significant support for the Father, and clearly enjoyed a close relationship with the children.
Mother’s Visit Notes
Beginning in October 2010, there is little adverse comment, and the notes record the staff of the centre reporting to the Mother, that the Father’s visit went “really good”.
There is a note dated 20th March 2011 that refers to one of the children having an accident in the bath and sustaining a black eye. The Mother volunteered this information, and that she took the child to the hospital (in the contact centre notes there is a copy of the [undated] discharge form from (omitted) Hospital from the incident). The same record notes the Father’s disquiet about the child’s black eye “but otherwise the visit went well”.
On 17th April 2011 the contact centre’s notes referred to the Father taking photographs of the children during his time with them. On 1st May 2011 the centre’s notes record “no issues” on the return of the children with their time with the Father. On 29th May 2011 the Mother expressed concern to the contact centre staff about whether the Father had learnt, or may learn, of her new pregnancy. The records of the centre of 24th July, 7th August and 27th November 2011 all list “no issues”.
On 22nd January 2012 the Mother refers to her stress about AVO proceedings and her general stress about ‘what is going on [with the Father].’
On 18th March 2012 the notes record that the children followed their Mother to the door of the contact centre then “they very quickly settled to wave goodbye via the monitor.”
The entries for 1st and 15th April 2012 deal with the Mother’s concern about the car being seen by the Father and the Mother telling the staff at the centre that the Father has started more trouble now that he has seen her car. She hopes that the police will sort it out soon.
Phone/File Notes
The range of entries here are for the period 25th October 2010 to 16th January 2012 (the records go up until the 18th April but it is sufficient for current purposes to deal with entries until 16th January).
Throughout the records for the period mentioned, the Mother confirmed her levels of anxiety and stress both in relation to the time that the children spend with the Father and in relation to the Father’s regular reports to DOCS and the Police involving the Mother and the children.[4]
[4] See the entries for 25th October 2010, 28th January 2011, 18th and 21st March 2011 and 16th January 2012.
The entry for 28th January 2011 also records a discussion between the centre and the ICL regarding the latter’s concerns about the Father making false claims to the police and to DOCS, but they also confirm the Father’s love for the children. The ICL is recorded as indicating to the centre her concerns about the Father’s extreme paranoia if things did not go well for him and the uncertainty of what he might do.
These file notes also record, on a reasonably regular basis, that the children’s time with their Father went well and that this information was conveyed to the Mother.
The final matter to note in this section concerns a note entered on 16th January 2012. On that occasion the Mother advised the contact centre that a complaint was made to DOCS regarding her partner inappropriately touching her daughter. The Mother confirmed that the complaint had been investigated and that no charges had been laid. The Mother sought to stop all contact visits between the Father and the children until the final hearing; however the ICL confirmed to the contact centre that the visits should continue.
Contact Centre Notes for the Father
The notes in relation to the Father cover the period from 6th February 2011 to the 29th April 2012.
By way of general comment, the notes in relation to the visits that the Father had with the children almost universally record “conversation as free flowing”, “age appropriate response to the children” and “relaxed, welcoming, relaxed play and cooperative.”[5]
[5] See entries for 6th February, 17th April, 1st & 15th May, 26th June, 10th & 24th July, 21st August, 4th & 18th September, 2nd & 16th October, 13th & 27th November and 11th December 2011, 22nd January, 19th February, 1st,15th 29th April 2012.
In all of these instances the comments are overwhelmingly positive in relation to the relationship between the Father and the children, thus “there was a very relaxed and warm atmosphere at the visit today”, “play was much more relaxed and natural this visit. More laughter and silliness than previously too.” ‘Father has ceased negative comments all together about the Mother.’ ‘Both children watched Dad leave on monitor and called out “bye Dad”.’ (15th April 2012.) “[Father and Grandfather] appropriate with directions, discipline…both also provide warm loving affection and happy conversation.” (29th April 2012)
There are, of course, negative or critical comments in relation to Mr Watkins, such as when he took a photograph of the child’s injured eye and questions to the children of “is that what really happened?” (6th February 2011), or Mr Watkins rejecting food provided for the children (“Is that food from her?” 3rd April 2011), or a comment from the Father (directed more to the staff at the centre than to the children) “at least she [the Mother] had one party without grog at it” (16th October 2011). The entry for 22nd January 2012 records the Father discussing with the staff of the centre that his daughter said to him that the Mother’s partner had put his hand down her pants.
Report of Dr K
This report is dated 31st March 2011. By virtue of its date, it was of somewhat limited utility at the trial held in mid-2012. Dr K was not required for cross-examination. To the degree that it should be considered, his report can be dealt with quite summarily.
In relation to Ms Dermott, Dr K said, at [29] of his report: “… she is quite amenable to Mr Watkins [Mr Watkins] having the children overnight, as he had, but as long as he behaves himself better.”
A little later in the report, Dr K said, at [35]: “It seems that she comes from a reasonably nurturing and intact family but she is having significant underlying psycho to emotional problem.”
In relation to Mr Watkins, Dr K said, at [46]: “There is some evidence in the Affidavit indicating that he has behaved quite badly in some ways and has reported her [Ms Dermott] to DOCS on several occasions without good reason. He certainly sees himself as a victim in this whole process.”
Shortly thereafter, Dr K said, at [50]: “Clearly seeing himself as the victim he is angry and resentful at the way he sees himself as having been treated and that is clearly standing in the way of establishing sensible relationships with the child [sic] and to some extent at least, the Mother.”
Then at [53] – [55], Dr K said: “… I think he is behaving quite badly and he needs to behave himself and behave more sensibly if he is to have reasonable contact with the child [sic]. I would stand by the idea that it is appropriate for him to have some supervised contact at first and he must accept the need for supervision by a contact centre if that’s what the court decides. I am aware of the fact that it is very inconvenient but it should move on then to much more normal and less restricted contact.”
In another section of his report, headed “General Comments about Mr Watkins & Ms Dermott”, Dr K said, at [4a]: “From a psychiatric perspective I see him as perfectly capable as having the children the way he was for a short period of time. He must desist from anything perceived as harassment with her and making frivolous claims to the Police and DOCS.”
Then at [6a], Dr K stated: “Since dictating these reports I have had an opportunity to view an extensive file of the NSW Police Force referring to alleged assaults and claims, etc, a section on assessment review. I have to say I have great difficulty understanding the significance of that enormous amount of documentation. Having read through it briefly I can’t see any reason to change the opinion I have expressed in my report. I stand by my assertion that these two people need to behave themselves much better in terms of custody, contact arrangements, particularly Mr Watkins.”
Finally, at [8a], Dr K said: “Clearly Mr Watkins is extremely angry at the Mother of the children and he really needs to exercise tighter control over that.”
Evidence of Ms D
Although, as noted, Ms D prepared three reports (August 2010, July 2011 & April 2012), it is essentially or primarily in relation to the last of them that the Court will direct its attention, but which will necessarily require some consideration of the July 2011 report. Ms D was briefly cross-examined.
The “key issues” identified by Ms D were: the children’s time with the Father; the children’s physical safety and emotional well-being in the Father’s care; the Father’s allegation that X may be at risk of sexual harm from the Mother’s partner; and the Father’s allegation that the Mother physically harms and verbally abuses the children.
At the outset of the final report, at [3], Ms D noted that the children “compliantly and willingly moved from the waiting area to the playroom with Mr Watkins. Mr Watkins was positive and appropriate in all his interactions with the children and the children initiated interactions with him. There were also positive and appropriate interactions between the children and their Mother during their observation. No concerns arose from the observations.”
Ms D noted that Mr Watkins’ focus remained on the children’s safety in the care of Ms Dermott and her partner, and that his concerns were not being properly addressed or taken seriously. For her part, Ms D observed that Ms Dermott’s concerns related to the children spending unsupervised with their Father, her lack of trust of him, and that he will continue to make false allegations against her. Understandably, Ms Dermott is concerned about the impact on the children of the false allegations, and their attendant engagement with police and other authorities as investigations are carried out.
Ms D referred back to, and otherwise endorsed, her recommendations of July 2011. In sum, those observations and recommendations are as follows.
First, at [34] of the July Report, Ms D observed that Mr Watkins continues to be “highly focussed” on Ms Dermott, and possibly obsessed with Ms Dermott “as a target of blame.”
At [35], Ms D noted that the children could be at some risk of emotional harm if they were to spend unsupervised time with their Father particularly if he told them distorted, false or frightening stories about their Mother and or other trusted adult figures in their lives.
At [38], Ms D said that she had reservations about Mr Watkins’ capacity to provide the practical parenting requirements for the children for substantial periods of time without “third party assistance”.
Clearly and understandably, in the light of the parents’ patent lack of trust and inability to communicate, co-operative parenting was not possible.
By way of general recommendation, Ms D said, at [40], subject to the Court’s assessment of any relevant risk posed by the Father to the children, the Court may consider supervised time for the children with the Father, and unsupervised time between the paternal Grandparents (without the Father being present), and some type of treatment program for Mr Watkins. An alternative regime of “contact” was suggested in the event that the Court held that no risk was posed by the Father to the children. In all of the circumstances, I need not detail this second series of proposals by Ms D.
It is convenient here to consider the evidence of Ms D from her cross-examination.
First, she agreed that there was a risk to the children if they spent unsupervised time with their Father and he presented to them fabricated versions of events.[6] In the same place, Ms D also agreed with the general proposition that fabricated events and ongoing allegations would impact negatively on the Mother, which in turn could impact on the children.
[6] Transcript (29th May 2012) p.102. (Hereafter “T followed by page number”.)
In response to questions from learned Counsel for the Mother, Ms D agreed that she could not think of any other way to protect the children from being exposed to the risk of the Father raising allegations involving the Mother other than by stopping all time with the Father.[7]
[7] T 104.
In response to questions from learned Counsel for the ICL in relation to “identity contact”, Ms D said that that sort of “contact” was desirable, subject to monitoring by the Mother, of perhaps two or three times per year. This was explored briefly to refer, not necessarily to face to face contact but rather to letters, photographs, gifts and the like.[8]
[8] T 105.
The final matters addressed with Ms D concerned (a) the children’s sense of loss if a “no contact order” were to be made (with some further discussion about whether the children might benefit from any counselling), and (b) whether there was any impediment to Mr Watkins receiving school reports and the like.
In relation to the latter and Mr Watkins receiving school reports, Ms D said there was no difficulty in that occurring. In relation to the former, Ms D confirmed that these were very difficult issues, and that there would likely be a genuine sense of loss for the children if they stopped spending time with their Father. She spoke about the routine of the children going to see their Father at the contact centre and their expectation of this occurring.[9]
[9] See the broader-ranging discussion at T 105-107.
Mr Watkins had no questions for Ms D.
Evidence of Mr Watkins
The evidence of Mr Watkins was broad-ranging, but may be confined to the following essential matters.
He repeatedly made the point that if the children told him of some event or problem he felt duty-bound to report it. This was his regular justification for making reports to DOCS.[10]
[10] See, for example, T (28th May 2012) pp.13, 20, 21, 26. (Unless otherwise advised, all subsequent references will be to the transcript of this date.)
Sadly and rather inexplicably, in the face of clear evidence from DOCS, the contact centre and the police, Mr Watkins said that (a) his complaints were not investigated or not investigated properly, (b) evidence he provided was lost (deliberately or otherwise), (c) evidence from DOCS and or the contact centre was false, (d) there has been some conspiracy against him, or (e) the finding(s) that his account of events was not credible was “unfair.”[11]
[11] Among many places, see T 30, 31, 34, 38, 44, 63.
Mr Watkins also made much of the contest between he and Ms Dermott as effectively a ‘tit for tat’ exercise, and that if he was left alone he would leave her alone. However childish this response was (and is), nonetheless Mr Watkins made it on more than one occasion.[12] In part, in this regard, Mr Watkins confirmed that while he acknowledged, somewhat reluctantly that his notifications to DOCS and or to the police would have an impact on Ms Dermott,[13] and in turn on the children, the on-going proceedings were having a negative impact on him also. He also accepted that the parenting relationship with Ms Dermott was difficult.[14]
[12] See T 43, 47, 49, 61 & 65.
[13] See for example T 49.
[14] T 43.
Mr Watkins confirmed that he believed himself to be a good parent.[15] He conceded, again somewhat reluctantly, that he could and should check out more thoroughly than he has done up to this point details of anything, such as an injury to the children, before making any complaints to DOCS or any other authorities.[16]
[15] T 56.
[16] T 59.
Mr Watkins also confirmed, not too readily but rather more gradually, that, as Dr K and others had observed, he was resentful of how he was treated by “the system” and because he felt that the treatment meted out to him was generally unfair. On one occasion the following exchange with Counsel for the ICL took place: “Wouldn’t you think it’s appropriate to rise above the tit-for-tat for the interest of your children? Yes. I would love to. If I just get left alone, I would.”[17]
[17] T 65. See also a similar exchange at T 67.
By way of general observation of Mr Watkins’ evidence, I found him to be forthright but still with an obvious and significant level of resentment towards the Mother, and those who he sees as supporting her, such as DOCS, the police and the contact centre. Unfortunately he has quite limited ability to see past his resentment, and, as Dr K observed quite some time ago, his self-perception as the victim in the current matter remains very strong. In my view, this inability remains at such a level that he is unable, without significant assistance, to rise above his own interests and place those of the children first in his life. There is no question that he loves them dearly. The tragedy is that he remains so injured and or so incapacitated by the breakdown of the relationship with Ms Dermott and the limited time he has with his children – for all of which he seems intent on blaming the Mother and holding her out effectively as “the enemy” – that his capacity to move beyond his resentment and similar dispositions is very limited.
Before leaving his evidence, I should also note that in the course of her submissions, Counsel for the Mother said that each of the matters complained of by her client were individually small but that taken together they posed a significant issue which, in her view, ineluctably, led to the ‘no contact’ order as sought.[18]
[18] See T 33.
The Evidence of Ms Dermott
Because Mr Watkins asked so few questions of Ms Dermott, it was essentially left to Counsel for the ICL to cross-examine the Mother. The scope was necessarily somewhat limited. A few limited examples may be given that typify the nature of the parenting issues, as well as the difficulties facing both parents.
For example, in relation to the injury sustained by Y when he fell in the bath, there is no doubt that the black eye presented as somewhat shocking to Ms Dermott, and no less so to Mr Watkins. And while the Mother took proper medical action (such as taking Y to the hospital), the first Mr Watkins learnt of it was when he turned up to the contact centre. Unsurprisingly he reacted very strongly to it.
Learned Counsel for the ICL asked questions of Ms Dermott about what steps she took to advise Mr Watkins of this injury. Her Counsel properly objected to some of these questions on the basis that there was an AVO in place which made it virtually impossible for her to contact Mr Watkins directly.[19]
[19] See T 75 ff.
Without canvassing all dimensions of it, this incident highlighted a number of obvious problems, primarily the inability of Ms Dermott to advise Mr Watkins in a timely way of issues concerning the children. As a result, the lack of communication seems to fuel his capacity always to think and act in the most negative of ways towards her and to think in a similarly negative way about her and her motives to exclude him from the lives of the children.
In the light of Ms Dermott’s protests about the Father’s [alleged] incapacity to parent and care for the children at even a very basic level, she was taken through a range of contact centre notes which confirmed his basic but invariably appropriate parenting in relation to the provision of food and drink, the application of sunscreen to the children, child-focussed playtime with them, the provision of age-appropriate toys, and general interaction with them. She agreed that in the light of these comments and notes from the contact centre it was all appropriate parenting by Mr Watkins.[20]
[20] See the discussion at T 80 ff.
Ms Dermott confirmed that attempts at the use of a communication book some time ago did not work. It was explored with her that her response to some of Mr Watkins’ comments was perhaps either an over-reaction or that she was being unduly sensitive. This is to say that there were other ways of reading the messages or comments by Mr Watkins.[21] From Ms Dermott’s replies to questions in Court, it is clear that the level of distrust, on both sides, is very high. It is going to take a long time for them, and other things, to subside.
[21] T 83 – 84.
Unfortunately, there was no evidence filed by Ms Dermott from her new partner, with whom she has had a further child. Nor did he attend the assessment with Ms D. Given that he is part of her household with the children, this was a not insignificant oversight.
Further, when questioned about part of her affidavit evidence, I confess that I found Ms Dermott’s answers less than completely encouraging or insightful. In her trial affidavit (par.89) she said: “It is my intention to remain living in the home where I am living with my three children and hopefully establish my relationship with Z's Father, Mr D. If all goes well for us, we would like to live together.”
I asked Ms Dermott about the “curious” order of having a child and then seeking to establish a long-term relationship with the new partner/Father. She acknowledged that Mr D did not live with her and the children, but did spend significant time in her household. She said that she hoped the relationship could progress once all the litigation was over and that the blame for various events ceased. In this regard I asked her further whether she appreciated that Mr Watkins similarly felt blamed for events. She seemed to acknowledge this.[22]
[22] T 85 – 86.
For my part, I have some difficulty with Ms Dermott’s evidence, certainly in this regard. It showed a certain lack of insight into the significance of parenthood (such as having a child and then seeking to “firm up”, so to speak, the relationship with the Father), and also, to the degree that it was her responsibility, it showed some limitation to put before the Court relevant evidence from her new partner of his role in the lives of the children. This was unfortunate.
Finally, Ms Dermott said that she sought a ‘no contact’ order so as to protect her children from Mr Watkins.[23] Although this answer was directly in response to a question regarding her omission to put Mr Watkins’ name on Y’s school enrolment form, it also suggested to me some small element that her fears of Mr Watkins, as genuine as I take them to be, have been accentuated in her own mind beyond the actual reality. Moreover, I do not understand her case to be, as she stated, that Mr Watkins has or would harm the children. Her case was/is that she is so flummoxed and distraught by the [on-going] reports to DOCS and other “agencies” by Mr Watkins that she cannot function properly as the children’s Mother anymore.
[23] T 87.
In summary, I took Ms Dermott to be genuine in her evidence, but somewhat overly-sensitive about some – not all – of the reports made to DOCS and the like. Further, while she has sought some assistance through parenting courses, I was a little surprised that someone who claimed to be as troubled as she is, has not sought much greater assistance, such as through [on-going] counselling, to deal with her anxiety or to work on strategies in dealing with the issues raised in this proceeding. Certainly no such evidence was put before the Court. Although I do not propose making a formal order, I would certainly recommend that she seek such assistance.
By way of general observation in relation to the evidence of both parents, unfortunately, little has changed from the assessment made by Dr K more than twelve months ago. His concerns and assessments of both parties, in my view, remain relevant and essentially accurate. In large measure, likewise the concerns and observations of Ms D also remain largely unchallenged and unchanged. There are short-comings in the capacities of both parents.
The essential issues remain: whether Mr Watkins’ conduct is such that he should spend no face to face time with his children, and what can and should be done (a) to re-direct, and if possible to transform, Mr Watkins’ resentment towards Ms Dermott to being a ‘child-focussed parent’, and (b) conversely, to protect Ms Dermott from any on-going allegations from Mr Watkins, and to assist her in her anxious state as she endeavours to solidify her relationship with her new partner, the Father of her latest child.
Finally, for the sake of completeness, in my view it is unnecessary to deal with the cross-examination of Ms V, whose evidence was in support of Ms Dermott in very limited respects.
The Legislative Pathway
At the outset, and in accordance with s.60CA of the Act, I remind myself that the orders to be made must place the best interests of the children as the paramount consideration.
Next, I have already noted, albeit by notation, the summary of principle articulated by Brown J in Mazorski v Albright and the subsequent and repeated Full Court endorsement of her Honour’s “twin pillars” reference to the objects of the Act in relation to the children having a meaningful relationship with both parents (to the degree that it is in their best interests) and the protective responsibilities of the Court. Those same decisions have also endorsed her Honour’s comments in relation to what is comprehended by a ‘meaningful relationship’ for the purposes of the Act. In this case, as in many others, the balance of these principles is delicate. In my view, this is especially so here because the children undeniably have a good and close relationship with their Father. To deny them of face to face time with him, as recognised by Ms D, and indeed by all sides, would be a drastic step to take.
Patently, the parties do not and cannot communicate. In my view, the utterly fractured relationship between the parents, as clearly set out in the evidence to which I have earlier referred, precludes the Court making any order in relation to parental responsibility other than that the Mother shall have sole parental responsibility for them.[24] I note again that the Mother is and has been for some time the children’s primary carer. That said, absent cases of emergency, she is to keep the Father informed, by letter only, of decisions and events that involve major long-term issues (as defined in s.4 of the Act) for the children. The Father is formally restrained from replying to such information. He is permitted to receive school reports and any other notices from the school, and the order to this effect shall be sufficient authority for him, and for any school, for this to occur.
[24] This is also to say that the presumption in s.61DA of the Act is readily displaced. It follows from such an order that the matters set out in s.65DAA have no application on the facts of this case.
In relation to the factors in s.60CC – both primary and additional considerations – I note the following, by way of summary, in the light of the evidence that has been canvassed earlier in these reasons.
First, there are no views, per se, of the children to consider, save that the contact centre notes clearly confirm that the children enjoy the time with their Father (and the paternal Grandfather), and that they wave wistfully if not somewhat plaintively at the monitor as they watch their Father leave the centre.
Secondly, and following sequentially the order in s.60CC(3) but without necessarily naming each sub-paragraph, as already indicated in various ways, the children clearly have a close relationship with both parents, and similarly with the paternal Grandfather.
Given when these proceedings were initiated, the “old” form of s.60CC(3)(c) applies. The comments here apply equally to s.60CC(3)(i). In my view, the question of parental capacity, willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent is most conveniently answered, initially by reference to Dr K’s report. He noted some short-comings on both sides, but especially that Mr Watkins was required “to behave himself.” On the evidence, clearly that has not happened. And while Ms Dermott once was open to the idea of the children having unsupervised and overnight time between the children and their Father, that time has long-passed. Thus, the incapacity noted by Dr K in relation to Mr Watkins remains an issue, and the Mother’s initial openness has evaporated because, she says, of Mr Watkins’ constant harassment via his reports to DOCS and the police.
In my view, the central issue to be addressed relates to the possible impact on the children if all face-to-face contact with their Father ceases. For my part, because the children have such a good relationship with their Father, it would potentially be too injurious to proceed as urged upon the Court by the Mother, and in the ICL’s primary submissions, which is to revoke all such contact between the Father and the children. Given the personal and parenting limitations on both sides, but particularly on the Father’s side, in my view, (a) provided the Mother can be properly protected and receive proper assistance (such as counselling and other support) to deal with the fraught and stressful relationship between she and the Father and its legacies, and (b) the Father similarly attends to things like parenting courses and anger-management assistance, I do not think it would be in the children’s best interests to make a ‘no contact order.’ That worse case scenario might yet arise if the Father does not attend to what is ordered and there is no improvement in the current situation. But that time has not yet arrived, however imminent it may be. The risks to the children, acknowledged somewhat by Ms D, in my view, are too great to take the extra step urged on the Court.
The issues of ‘practical difficulty and expense’ of the children spending time with their Father, as limited as it is going to be, is not a prominent consideration here.
Likewise, given the orders to be made and the children remaining with their Mother as primary carer, as they have been predominantly for most of their lives, issues of “capacity” do not formally arise.
Precisely because of their relatively young ages (s.60CC(3)(g)), in my view it would in all likelihood be more detrimental to the children to cut out all face to face time with their Father than have a regime of very few times per year with him, as will be ordered, and while he attends to a range of courses, and while the Court monitors, so to speak, his behaviour.
Matters of family violence have been addressed in the course of considering the evidence from the police in particular. Strictly speaking, the violence alleged is and has been essentially perpetrated against Mr Watkins, but it has not been established that Ms Dermott has been in any way involved.
In my view, the orders proposed are those that are least likely to lead to the institution of further proceedings.
Moreover, having regard to the Court’s protective responsibilities on the one hand, and its responsibilities on the other, as set out in s.60B and s.60CC(2) to ensure that the children have the benefit of a meaningful relationship with both parents, in my view, the benefits to the children of seeing their Father, albeit very infrequently but still face to face, outweigh the possible risks to them of all such time with him being immediately [and throughout their minority] terminated.
Discussion & Resolution
Given that the position of the ICL was essentially in support of the Mother, and given that the Court has stated a number of times already the volume and strength of the evidence that would not entitle any of the orders sought by the Father to be made, it is sufficient to summarise the principal argument of the Mother.
Among other authorities cited, learned Counsel for the Mother relied upon the decisions in Marsden & Winch, Langmeil & Grange, and Quincy & Roberts.[25]
[25] Respectively, (CF 65 of 2004: unreported 21st November 2007), (2010) FLC ¶93-427, and [2011] FamCA 840.
These cases were cited to support the proposition that a “no contact” order should be made, included in which is the Court’s appreciation that on-going supervised time at a contact centre is [somewhat] unrealistic, the surroundings are quite artificial, and long-term, such time is [usually] not in the children’s best interests.
Accepting, as I do, the authority of the cases cited, respectfully, the factual circumstances that confronted the court in those matters were, in my view, invariably extreme. In my view, accepting the seriousness of the issues before this Court, for the reasons already outlined, the risks of on-going time with their Father, and the risks to the Mother’s fragile state, must be weighed against (a) what protective measures the Court can and should put in place in relation to both the children and the Mother, and (b) the risks to the children if all face to face time with their Father was severed. On the facts of this case, and in the light of the protective orders outlined now, a ‘no contact’ order is a bridge too far.
Moreover, in the decision of Champness & Hanson the Full Court referred, at [215] – [221], to the wide discretion of the court in relation to, among other things, “supervision orders”, as well as the significance of some kind of “review mechanism.”[26] Such matters are directly ‘in play’ in the circumstances of this case.
[26] Champness & Hanson (2009) FLC ¶93-407. This Full Court authority has very recently been considered and applied in an appeal that included a ground which stated: “His Honour has made an error of law in not providing a sunset clause for supervision of visits.” This ground of appeal was dismissed. See Lindsay & Baker [2012] FamCAFC 189 at [77]. Although apparent from the ground of appeal, I simply observe that in that case the Court made an order for continuing supervision. That is not this case where there is a defined time for supervision and an ‘appropriate review mechanism.’
The orders which I consider to be in the children’s best interests, are as follows:
a) All previous orders are to be discharged.
b) The Mother have sole parental responsibility for the children.
c) The children live with their Mother.
d) Other than the children’s time with their Father at the contact centre in (omitted), the formal restraints sought by the Mother in her Minute of Orders sought will be made.
e) The Father be permitted, and the children’s schools be authorised to provide, copies of the children’s school reports to him.
f) Mr Watkins be permitted to spend time with the children, for the maximum time permitted by the children’s contact centre in (omitted) four times per year, once per each school term. Each visit is to occur on the first weekend of the commencement of each school term. This order is to remain in place for three years.
g) For each of these three years, the Father is to undertake and to provide to the Court evidence of having completed a parenting course, with an emphasis on post-separation parenting and on anger management. If this evidence is not provided there will not be any review as noted below.
h) At the conclusion of the three year period, the head of the family consultants at the Court in Canberra is requested (a) to review the notes from the contact centre for the previous three years, and the evidence in relation to the Father having completed the courses ordered, and (b) to meet with each of the parents separately following the review of the notes from the contact centre. Of course, if there are any relevant records from DOCS and or the police to which the consultant should have regard from the same period, those records too should be consulted. The family consultant who does this review is further requested to provide a note to the Court as to whether the matter should be re-listed to see whether any increase in time between the children and their Father should be permitted.
i) The Father and paternal Grandfather are each permitted to send to the children cards, letters, gifts and photographs. The Mother is to check whether such items are appropriate and then, if so satisfied, provide them to the children.
j) 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. Otherwise, the Mother is to advise the Father by letter only, and the Father is restrained from responding in any way, of decisions in relation to any major long-term issue in relation to the children.
k) The ICL be discharged.
The Court so orders.
I certify that the preceding one hundred & twenty-five (125) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 7 December 2012
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