Watts and Peterson
[2010] FMCAfam 1108
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WATTS & PETERSON | [2010] FMCAfam 1108 |
| FAMILY LAW – Parenting – family violence – no time between the children and the father ordered. |
| Family Law Act 1975, ss.60B, 60CC, 65DAA, 68B |
| McCall & Clark (2009) FLC 93-405 Mazorski & Albright (2007) 37 Fam LR 518 G & C (2006) FamCA 994 MRR & GR (2010) 240 CLR 461 |
| Applicant: | MS WATTS |
| Respondent: | MR PETERSON |
| File Number: | LEC 575 of 2009 |
| Judgment of: | Demack FM |
| Hearing dates: | 28 & 29 September 2010 |
| Date of Last Submission: | 29 September 2010 |
| Delivered at: | Lismore |
| Delivered on: | 29 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gordan |
| Solicitors for the Applicant: | Legal Aid NSW |
| Solicitors for the Respondent: | Stephen Tester & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Theobald |
| Solicitors for the Independent Children’s Lawyer: | GJ Legal Solicitors |
ORDERS
That pursuant to section 68B of the Family Law Act 1975 the father is restrained from:
(a)directly or indirectly approaching and/or communicating with the mother MS WATTS born (omitted) 1988 and/or the children X born (omitted) 2005 and Y born (omitted) 2007 (including but not limited) in person, by telephone, email, SMS, facsimile and/or letter, except in accordance with current Family Law orders;
(b)going within five hundred (500) metres of any home or place where the mother or the children are or generally living or staying;
(c)going within five hundred (500) metres of any place or school where the children attend, visit or are enrolled;
(d)going within five hundred (500) metres of any place of employment where the mother may be working;
(e)going within five hundred (500) metres of any other place where the mother and/or the children may be present;
(f)causing or threatening to cause bodily harm to the mother and/or the children;
(g)harassing, molesting or stalking the mother and/or the children.
That pursuant to section 68C of the Family Law Act 1975, the purpose of this order is for the personal protection of MS WATTS (omitted) 1988, X (omitted) 2005 and Y (omitted) 2007.
That pursuant to section 68C of the Family Law Act 1975, if the father breaches any of the restraints contained in order 1 hereof, the father be arrested without warrant.
That leave be given to the mother to provide to any day care staff, school staff and/or school authority and/or State Welfare authority or treating practitioners a copy of these orders.
That the children live with the mother.
That the mother have sole parental responsibility for the long term care, welfare and development of the children.
That the father spend no time nor communicate with the children including via electronic communication.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED
That the father was present in Court for the making of orders 1 to 4 contained herein.
IT IS NOTED that publication of this judgment under the pseudonym Watts & Peterson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LISMORE |
LEC 575 of 2009
| MS WATTS |
Applicant
And
| MR PETERSON |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
This is a final decision with respect to a parenting application. The children are, X, who, having been born on (omitted) 2005, is nearly five - she is about four and three-quarters, or a little bit more – and her little brother, Y, who, having been born on (omitted) 2007 is now aged around three and a half. The mother is the applicant. She was born on (omitted) 1988 and is now aged around 22, and the father is the respondent. He was born on (omitted) 1979 and is aged 31.
The parties commenced their relationship some time in 2003. The mother turned 15 that year. And they separated on a final basis in November 2009.
I note at the outset that the persons who are present in Court at this stage include the mother, her solicitor and her counsel, the father and his solicitor advocate, and the Independent Children’s Lawyer and her counsel.
1. That pursuant to section 68B of the Family Law Act 1975 the father is restrained from:
a)directly or indirectly approaching and/or communicating with the mother MS WATTS born (omitted) 1988 and/or the children X born (omitted) 2005 and Y born (omitted) 2007 (including but not limited) in person, by telephone, email, SMS, facsimile and/or letter, except in accordance with current Family Law orders;
b)going within five hundred (500) metres of any home or place where the mother or the children are or generally living or staying;
c)going within five hundred (500) metres of any place or school where the children attend, visit or are enrolled;
d)going within five hundred (500) metres of any place of employment where the mother may be working;
e)going within five hundred (500) metres of any other place where the mother and/or the children may be present;
f)causing or threatening to cause bodily harm to the mother and/or the children;
g)harassing, molesting or stalking the mother and/or the children.
2. That pursuant to section 68C of the Family Law Act 1975, the purpose of this order is for the personal protection of MS WATTS (omitted) 1988, X (omitted) 2005 and Y (omitted) 2007.
3. That pursuant to section 68C of the Family Law Act 1975, if the father breaches any of the restraints contained in order 1 hereof, the father be arrested without warrant.
I have made that suite of orders at the outset because the father is present in Court. I made an order to similar effect on 2 February 2010. The mother says in her material that the local police chose to consider that the father had not been personally served with that order and so therefore did not take it to be an order that would have effect for their purposes. I am about to commence giving a thorough decision – I hope it is thorough – with respect to parenting matters.
The father has an antisocial personality disorder. Part of the antisocial personality disorder is some difficulties with impulse control. The father will not like the decision which I make on a final basis to do with parenting matters. I considered that there was a risk that if he did not like the way he considered my decision was going, he may choose to not remain in the courtroom. I was not prepared to take the risk that the father may choose to leave the courtroom prior to my pronouncement of orders on a final basis.
I therefore took the step of pronouncing the order pursuant to s.68B of the Family Law Act 1975 (“the Act”) at the outset whilst the father was here. I certainly do not mean to say that I would wish the father to leave. I hope that he remains in Court for the entirety of the decision.
This decision, as I say, is with respect to X and her little brother, Y: a four year old and a three year old. The basic position of the mother is that during the relationship she had with the father, the father was violent to her, and the violence was such that during the relationship she was isolated, abused, assaulted, financially controlled, emotionally abused, and that this happened in the presence of the children at times, and sometimes the children were the subject of abuse by the father. That since she managed to leave the relationship in Tasmania in November 2009 with the assistance of her mother and come to the Northern New South Wales area, she has been able to slowly put in place assistance, treatment, therapies, and attention for the children which she had previously been unable to do. That, in part, she has been able to do that with the practical and other emotional assistance from her mother as she lives with her mother.
The time that the children have spent with their father since my orders of 2 February 2010 has been supervised only, other than a provision for telephone communication.
The mother says that the children’s recovery from living in a household where family violence was perpetrated by the children’s father on the children’s mother is such that the children now, even with having supervised time with their father and still recovering from the violence and their experience of it, they should, from now into the future, have no time with their father. The mother says that if the father was to have unsupervised time with the children, they would be at risk of harm. In the event that they had supervised time with the father, she says that their risk of harm may not be physical but would continue to be emotional and psychological.
The father’s position is that the violence which the mother says he perpetrated on her is a fiction of the mother’s, that if anybody was violent in the relationship, it was the mother who was violent to him. He says the mother was a poor mother and that without his assistance, the mother would not have been able to parent the children. He says he has a close and attached relationship with the children and that that can only continue by him having regular meaningful time with the children, that there is no need for that time to be supervised, and there is no need for any great restrictions with respect to the time that he should have with the children.
The orders that the father seeks on a final basis are that until the children go to school, they spend time with him for three days each week on a Tuesday, Thursday, and a Sunday for the entire day from 9 till 5, and once they attend school, it be from 5 o’clock on a Saturday through till 9 o’clock on a Tuesday each and every week, and that once they’re at school, it be for half of school holidays. He also seeks that the children be at liberty to have telephone communication with him no less than once per week.
An Independent Children’s Lawyer was appointed by the Court on the first Court appearance. The Independent Children’s Lawyer’s preliminary view was that the time between the father and the children would either continue to be supervised at the contact centre, or it may be that they would also seek an order that there be no time.
The Independent Children’s Lawyer’s considered view at the end of the evidence was that she supported a position wherein the children have what the local child protection department call “identity contact,” which would be supervised visits once every three months. The Independent Children’s Lawyer’s considered view was also that the children should be at liberty to have telephone contact with their father on a fortnightly basis.
The mother has instructed her counsel that in the event that the Court was against the order for there being no time, the mother’s alternate position is in line with that proffered by the Independent Children’s Lawyer.
The evidence which I have before me comes primarily from the parties. The mother also had an affidavit from her mother, and her mother was required for cross-examination. The father’s evidence was only himself as his witness.
The Court had ordered, in the first instance, a family report being prepared. A family report was prepared by Ms V, social worker, and dated 21 January 2010. A limitation of that report was that the father remained a resident of Tasmania at the time of that report, and he was not able to be interviewed face-to-face, and he was not able to be observed with the children. A supplementary or other report was then ordered to try to cure that deficit. Mr A, family consultant, pursuant to an order of mine, 16 March 2010, produced a Child and Parent Assessment dated 16 April 2010.
Subsequent to that, a psychiatric assessment of the father was completed by Dr I, psychiatrist, of (omitted). He was, as I understand it, instructed by Ms F, the Independent Children’s Lawyer. He had available to him not only his interview with the father, but such other material including the family report and the assessment by Mr A at the time that he made his assessment.
The father was required for cross-examination. The mother and her mother were required for cross-examination. Ms V and Mr A were not; Dr I was. Dr I appeared by telephone. The other people appeared face-to-face.
This is a decision with respect to parenting matters on a final basis. Part VII of the Family Law Act 1975 governs the matters which the Court must take into account when determining parenting matters. The best interests of X and Y are my paramount consideration. The objects and principles of Part VII of the Act are set out in s.60B. I am mindful that the children have the right to have a meaningful relationship with both of their parents to the maximum extent consistent with their best interests and to the maximum extent keeping them safe from harm.
The father’s presentation in Court
Dr I opines that the father has an antisocial personality disorder. The father does not specifically deny or admit any understanding or acceptance of that diagnosis. An antisocial personality disorder – says the doctor in his report at page 7 – is an enduring pattern of behaviour in which the rights of others tend to be disregarded. This is frequently associated with violence in various forms. It is frequently exacerbated by ongoing substance abuse, as in this case.
I then go on to further quote from Dr I:
Mr Peterson’s lengthy criminal history is a reflection of the significance of his Antisocial Personality Disorder. Whilst many offences have related to mis-use of alcohol or behaviour under the influence of alcohol, and others relating to driving offences, it is also clear that there are many instances of violence towards property and threats of violence and actual violence to individuals. There are nine restrained/PFV/FV orders from Tasmania alone between 1997 and November 2009.
Dr I diagnoses the father also with substance abuse, particularly alcohol and marijuana. The father has, pursuant to Court orders, undertaken two urinalysis, the first which was done on 15 February; cannabinoids were present. The second and only other urinalysis done was on 7 September 2010. Cannabinoids were not present at that time.
The father has received no treatment or undergone any therapy with respect to his substance abuse issues. The father declares that it is not necessary and is not a present or ongoing issue for himself. I should include, at this point, though, that in his affidavit, the father says that the reading in February resulted from having the use of a joint a number of weeks earlier. Mr A, he said he didn’t understand why there had been a reading, as he had not smoked in five months and was surprised when he returned a positive urine test in February.
Some of the features of an antisocial personality disorder include notions of grandiosity and narcissism. It also includes poor impulse control, irresponsibility, pathological lying, emotions which are shallow, being manipulative and cunning, being irresponsible, and being unreliable. The father’s differing views with respect to the cannabis testing positive in his urine in February is a very simple example of the father’s pathological lying.
This all becomes very important in this matter, as the father’s approach to the mother’s detailed and particularised and corroborated instances of family violence perpetrated by the father on her are, in most cases, simply denied. The father’s attitude to being asked questions about the family violence was, at times, it seems, to smile or perhaps smirk. He considered that he had been the victim of violence at the mother’s hands but that nobody would take that seriously, and he considered that the violence that the mother described was simply matters for which he would give blanket denials.
The difficulty with that approach is that there is corroboration for the violence that the mother suffered at the hands of the father. In Tasmania, the mother and the father were subject to some attention from the local child protection agencies and from the police, and they were also seen by other agencies at times. The father displayed aggression and violence to the mother and to the boy, Y, in a Centrelink office. The father’s aggression at the Centrelink office was such that he was banned from attending there for a period of three months. He was violent to the boy, and he was disrespectful of the property at the Centrelink office. He pushed over a stand with brochures on it, as I understand it.
The instances that the mother speaks of in her material with respect to violence are particularised. She doesn’t speak of things in generalities. At times she doesn’t provide dates, but she speaks about instances which were different and which have, in every respect, the hallmarks of an escalating pattern of abuse and control.
To Ms V, by telephone, the father made some slight admissions. He said to Ms V that he did have a bit of a temper and that he had “pushed her a few times” and did “mouth off.” But Ms V then says at paragraph 20 on page 9 of her report:
...but he appeared not to consider this to be threatening or violent behaviour.
The mother’s demeanour in the witness box was wholly congruent and consistent with her recounting matters of violence. The father’s appearance and demeanour in the witness box was wholly congruent with an antisocial personality disorder. He was dismissive of questions. He had a tendency to call counsel “mate.” He had a louche approach. He would says things like, “Yeah, well, you’ve got that wrong, mate, haven’t you?” to counsel, and the only time he displayed any affect of any substance was when he started to cry when he was asked questions about his greyhounds.
Because I am giving these reasons orally, I will not read into the record the history of abuse that the mother has set out in her affidavits. But so as I can be clear on this record, I am satisfied that the matters which the mother sets out with respect to the violence which she experienced from the father in her affidavit, and in particular her affidavit filed 7 September 2010 from paragraphs 58 onwards, and in her earlier affidavit of 19 November 2009 where she speaks of the history of the relationship and violence, and in particular the matters of 9 November 2009, I accept in their entirety.
They are sobering reading. The mother was a young woman when she commenced a relationship with the father. She was 15. Her own mother disapproved of the relationship. Soon after the relationship commenced, the father was imprisoned for offences which weren’t related to the mother. Upon his release from imprisonment, he resumed his relationship with the mother. Again, the maternal grandmother was disapproving of the relationship that her young daughter was entering into. Her daughter, at this stage, was only just 16, and the father had, apart from having been in prison was, it seems, already the father of a couple of other children to two earlier relationships.
The only thing the maternal grandmother could do to support her daughter was to have her daughter and this partner, of whom she disapproved, live in her house. Living in her house also was one of her sons, a brother to the mother. It was not long before the brother and Mr Peterson had an argument. That argument became physical. During that time, Mr Peterson did property damage to the maternal grandmother’s home.
At that point in time, the mother and the father left that house to live separately from the mother’s mother. It was then that the father suggested that he and the mother move to Tasmania. He had family and knew people there. The mother did not. Some time later, when the child, X, was born, they came back to New South Wales briefly. That did not last long, and they returned to Tasmania.
They then remained in Tasmania for the rest of their relationship. The mother knew that her mother disapproved of the relationship, although from time to time she would call her mother when she was particularly distressed from violence that she had had experienced recently. Her mother – a woman, herself, who had been in a violent relationship – had limited means and capacity to assist her daughter. It wasn’t until November 2009 the maternal grandmother had time from leave entitlements and sufficient cash to be able to travel to Tasmania to visit her daughter and the grandchildren there.
The mother, at some stage, was keeping a diary. She annexes to her affidavit of 19 November, a diary entry from a date which seems to be Wednesday 14 October 2009. She has got at the tops of the pages of that diary an entry of how many days there are to go till her mother comes to visit. It would seem that this was probably on eighteen days to go, and the mother records this:
Mr Peterson hit me today.
Most hits were to the head others were in the arms and knees.
The last hit he did was to the back of the head and I didn’t even know he had hit me, because I blacked out. Just remember coming to and then all of a sudden pain in the head I felt dizzy and couldn’t see probley [sic] when I would look at something I would see blures [sic].
Its been about an hour since he hit me I’m having blackouts every five minutes all so I have a constant headache.
One of the hits today got me on my left eyebrow. I couldn’t open my eye for about 20 minutes.
I got chocked today I’ve had things pecded [sic] at me, I’ve been hit with objects I have marks on my hands, a lump on my knee.
Im gonna die
it’s his Goal!
There is also the note:
Today was the worst ever!
On 19 November 2009, the maternal grandmother was in (omitted) with the parents and the children. At one stage, the father and the children were together in a shopping centre, and the mother tried to call somebody at the statutory child protection agency. There is a record of the conversation that the mother had with the Department at that time.
Doing the best I can from my memory of having read that document earlier today, the Department recorded that the mother had called, that she was in need of assistance. She did not want to go through the Family Violence Service, as they were not any use to her. She was concerned the police were not any use to her, but she needed assistance in her and the children being able to escape from the father. The phone call ended with the mother saying that she was wasting her time and that she was running out of credit.
This recorded interview by the department accords absolutely with the mother’s own material wherein she says that while she was at the shopping centre, she managed to get away from the father and tried to call the department but couldn’t get through to the person she wanted to speak to.
The mother and her mother then went to find the father and the children to find that they had left the shopping centre on a bus. The mother and grandmother then took the next available bus back home to find the father and the children not there. The police were called. The mother then thought she saw the father not far away and told the police there was no need for them. The mother then approached the father, and the children were in the car. The father does not have a driver’s licence. It was not his car. I do not understand him to have been driving.
The mother was not able to get in to the children because of some malfunction of the car door. The father then picked the mother up and threw her away from the car and caused the car to be driven off with the children in it and with him and the other person. It was some time later that the police came upon the father and the children were able to be returned to the mother.
As best as I can understand the record, the father was then arrested, and it was at that point in time the mother and the grandmother took the opportunity to take themselves off with the children to a hotel or motel in (omitted) and the next day managed to fly out of (omitted) back up to this area where the maternal grandmother lived.
The mother, in every respect, then behaved in a manner which was wholly consistent with her having escaped a violent relationship. She promptly took legal advice. These events that I have just recalled occurred on 9 November 2009. By 17 November 2009, she had sworn an affidavit for filing in this Court. She had had the children taken to a general practitioner, and she had commenced doing what she needed to do to ensure that the children were safe from the violent relationship that she had been living in.
There are other matters which are corroborative of a pattern of behaviour by the father. The father has had two earlier relationships which have followed a similar pattern. He has had, on two earlier occasions, a sexual relationship with a 16 year old who has fallen pregnant to him who he has been violent to, who have then been assisted by their own mother in escaping the violent relationship with the child and then taking the protection of a family violence order in the state in which they live.
He has a child, A, a girl, who is now aged about twelve to the first of those relationships and a son called B to the second of those relationships. In both of those cases, for the mother of A and for the mother of B, it seems that they were blessed to have sufficient access to a mother with sufficient fortitude to help their child escape a violent relationship in the earlier stages, rather than the mother in these proceedings before me, who endured a violent relationship for many years before she was able to leave with the assistance of her mother.
One of the illuminating examples of the father’s attitude towards the violence was an answer that he gave in cross-examination, which was that it couldn’t possibly have been a violent relationship as the mother says, because why would she have stayed with him for all of those years? It was a rhetorical question that counsel properly did not answer for him, but it indicates the father has no present insight into matters to do with family violence.
His antisocial personality disorder brings with it a certain circuity. It contributes to his behaviours including his lack of insight and his inability to acknowledge his behaviours and his past wrongs. His absolute failure to take responsibility for his behaviours which, in turn, are at least in part a consequence of his antisocial personality disorder, his history of his criminality and of his family violence not only to this mother but to the mothers of his other children, his history of his failure of respecting laws and restraints on his behaviour, and his history generally of being unable to provide truthful responses all demonstrate absolutely his antisocial personality disorder.
Following the orders of 2 February 2010, the children were to have monthly time with their father at a contact centre in (omitted). (omitted) is some distance from where the parties both live in the (omitted) area. It requires some significant travel if taken by public transport. The father missed one of the contacts in the early stages, and he told Mr A that that was because his cousin, with whom he was living at that time, had had some car problems.
Mr A followed that up with the said cousin. In his report of 16 April 2010, Mr A reports this at paragraph 17:
Ms D confirmed that Mr Peterson had been living with her for approximately five or six weeks but described this as an extremely unpleasant experience and explained that she asked Mr Peterson to leave. Ms D said that when Mr Peterson did move out two weeks ago, she found a number of very expensive items had been stolen from her home. She confirmed that she had made a Police report naming Mr Peterson as the person she suspects as stealing these. Ms D said that she finds her cousin to be a frightening person and that she is concerned about the ramifications of making the Police report because of what he is capable of.
Mr N (who is Ms D’s partner) confirmed the same details and added that since asking Mr Peterson to move out, he has received a number of abusive messages on his phone from Mr Peterson which involved threats to kill him. Mr N said that he believed that Mr Peterson was still deceiving Centrelink that he was living with them. Both Mr N and Ms D confirmed that there had been no problem with their vehicles on the 19th March when Mr Peterson missed his visit with the children but that Mr Peterson had simply not been able to find a way to get to (omitted) and chosen to stay home that day.
The father was asked about these, and he was wholly dismissive of that evidence contained in Mr A’s report. He said that he had a different version of events and proceeded to give it, and the version of events that the father then placed on the Court record was indicative of the transference that he does. He is unable, it seems, to take responsibility for his own behaviours, particularly his violent behaviours. He then instead creates a scenario which he seems to truly believe which then reflects on the behaviours of the other people, therefore making his behaviour seem, in his own mind, reasonable, responsive, and appropriate. It is absolutely indicative, it seems to me, of his antisocial personality disorder that he would do this.
All of these things become increasingly important, as I am considering the issue of parental responsibility and the issue of time that the children should have with their father into the future. If the father has no present insight into his behaviours, then he has not even passed the first mark for there being any change in his behaviours. He sees that he has done nothing wrong. He is most critical of the mother and her parenting, her hygiene, her work ethic, and sees that he somehow will provide something for the children that the mother can’t provide.
Yet part of his personality would seem to be that he considers that using violence is not only acceptable but is, in many respects, a reasonable response. And in terms of what that means for his capacity to provide within a parenting framework appropriate modelling, an unconditional love, a place which is safe for children, it seems to me that without some glimmer of insight, the father’s capacity to have a relationship with the children which is safe for them is wholly non-existent. It is not that it is somewhere a capacity for him to provide something for the children. It seems to me that what he offers the children is poor behaviour, criminal behaviour, maladaptive behaviour, and this ongoing transference by him that violence is something which should be learnt by the children.
The mother, in her material, has annexed a form of journal that she has been keeping to record telephone communication between the father and the children. Pursuant to my order of 2 February 2010, the father was to have telephone communication with the children three times a week. X has issues with respect to developmental delay including some speech delay. She otherwise seems to have some social delay. She does not speak with her father on the telephone much, if at all.
The younger child, Y, is a more chatty fellow. He speaks with his father on the telephone. The father, in the first few months after the order was made, phoned very regularly on the three days per week. That has slipped off in recent times, and he is not so regular in calling. But within the calls that he has made to the child, Y, he has said at times comments which are, in every way, grossly inappropriate, and he seems to have no insight into that. He has said to the child, for example on 22 February 2010 that mummy was naughty because she wouldn’t give him a biscuit before dinner, and the father told the child to hit the mother.
On 1 March 2010, the mother records:
Mr Peterson said to Y “mums naughty mums a scumbag because she won’t let me see you mum don’t love you but dad loves you.
On 17 March 2010, the mother writes:
Mr Peterson rang spoke to Y for about 10 mins told Y he had been with the police and that the police bashed him.
On 24 March 2010, the mother writes that:
Mr Peterson told Y, Don’t worry about it mummys a slut who’s gonna to get her head punched in.
On 26 March 2010:
He told Y he is going to bash mummy when he sees me and kill me with one punch.
And on 28 May 2010, the mother records that the father:
…told Y, not long now Y’s gonna to come live with him.
Y has some behaviours which seem akin to oppositional defiance. The mother has, since the child has been in her sole care, attended to him being assessed by a paediatrician and by occupational therapists and a psychologist. The view of the psychologist was that the family violence in which the child had been living earlier was no doubt a contributor to the child’s behaviour, and also the mother needed to have some further parenting skills and techniques taught to her to enable her to respond in a way which would be more effective and appropriate.
The mother has done a P5 parenting course, and she is wholly receptive to any further assistance that she may be able to glean from professional persons. The child’s behaviours have been aggressive to the mother and to his sister. He has had tantrums which have lasted for hours at a time. They are now fewer than they have been in the past. He has been aggressive to his mother in front of other persons, such as during an assessment interview with one of the professionals, he bit his mother.
The behaviours, the mother now reports, are lessening. The mother now considers that she has better responses to the child, and the maternal grandmother also records that the child’s behaviours are now settling.
The older child, X, had difficulties with fine motor skills, with language, with social contact with persons, and there is every reason to consider that these maladaptive behaviours of X’s were, if not the result of the violence perpetrated by the father, then, in every respect, not assisted by the social isolation in which the family lived, by the control that the father exacted within the household and by the child having witnessed her mother being abused by the father.
The mother has made reports as to how the children have presented after they have spent time with the father. She says, at her affidavit of 7 September 2010, paragraph 6:
After the visits the children are often excited when they come out. They often talk about the toys they get from Mr Peterson. Y in particular tells me all about the visit, what they ate, and what they did with dad. X is a lot quieter but will often talk excitedly about getting a toy or being in the sand box for example. This doesn’t seem to last for long as I often notice the children are unsettled and tired, they often fight in the car on the way home. They have both had nightmares after the visits, waking up in the middle of the night screaming. X can be screaming but her eyes are still shut. X often wets the bed for a few days after visits. Y will talk about things that happened in his sleep.
The mother proffers the view that these behaviours by the children are examples of adverse emotional sequelae from them spending time with their father. It is submitted on her behalf that the children spending time with the father causes them to have memories of earlier traumatic events.
The father submits to the contrary. He says that the children’s time with him at the contact centre is, as is reported by the contact centre, a more than satisfactory experience for the children, that they greet him enthusiastically, that he is, at all times, appropriate with them, and that they enjoy their time absolutely with them, and that there are hugs and kisses and appropriate behaviour all round.
It is submitted on his behalf that these adverse behaviours that the mother reports after the time may also be consistent with the children missing their father and not spending sufficient time with him, that it is not necessarily the case that these behaviours are only consistent with them being traumatised or somehow experiencing the contact in a way which is harmful to them.
My difficulty with that submission is that the behaviours which the mother is describing (and so that I am clear, I find the mother’s description of these behaviours to be as reliable as I have found her descriptions of the violence during the relationship to be, and there is no reason that I consider that I would find the mother to have exaggerated these behaviours) are more than the children being distressed or being somehow out of sorts from having seen their father. Nightmares, waking up in the middle of the night screaming with a child still having her eyes shut, and bed-wetting are not examples of merely unsettled behaviour. They are not examples of children distressed at missing an otherwise reasonable and loved figure. They are negative adverse consequences for the children. It cannot be said to, in any way, be a positive benefit to the children to have events occurring in their life which cause them to have nightmares or night screaming or having bed-wetting at this age.
I am reminded by counsel for the mother of the Full Court decision of McCall & Clark (2009) FLC 93-405. There, the Full Court was talking about the notion of a meaningful relationship. They accept, as appropriate, the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright (2007) 37 Fam LR 518, and they have extracted the parts of paragraph 26 of Brown Js decision at paragraph 115 of their. They say this:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
The Full Court in McCall & Clark also said that they agreed with the reasoning of Bennett J in G & C (2006) FamCA 994. They say this at paragraph 122 of their decision:
In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The Independent Children’s Lawyer asks me, it seems to me, to craft orders which might be able to foster a relationship which would provide for the children an ongoing relationship with their father: the notion of identity contact wherein the children have time with their father in a supervised setting once every three months.
I note that Dr I was of the view that whoever supervised the time would need to have the particular skills of understanding, as I understand it, the father’s antisocial personality disorder and what that might mean for how he may – and these are my words – attempt to undermine the relationship the children have with their mother, attempt to undermine notions that violence isn’t the answer, fail himself to understand what are appropriate boundaries and what things should be spoken with with the children, fail to understand that the children should not be brought up to consider that relationships between men should be ones where there are made issues of aggression and violence and control and that relationships between men and women should have the manifestations of dysfunction that the father has had in all of his adult relationships.
The mother was specifically asked whether there was any person that she knew (any family member or a friend) who might be able to supervise time into the future. Unsurprisingly, she was not able to come up with somebody who might be prepared to do that. Why would someone be prepared to do that? It seems all of the people who the father comes into contact with at some point in time form the view that they are frightened of him.
The time then could only occur at a contact centre. It seems to me that not only would the time have to occur at a contact centre, but the staff at the contact centre should properly be fully advised of what is being sought from them: that this is a different form of supervision than supervision might otherwise take. It would be supervision where all conversations should have to be heard. It is supervision where the father, because of his unpredictability and his unreliability and his pathological lying, may well misrepresent matters to the staff. The staff would need to have the wherewithal, the understanding, the skills and experience to be able to deal with this.
There is further a practical difficulty. The father and the mother both presently live in the (omitted) area. The mother has never been the holder of a drivers licence. She is young. She has been in a violent relationship for most of her years when she could have obtained a driver’s licence. She has a fear of driving and would seem to be quite firmly resistant to including learning to drive with all of the other matters that she is presently trying to get sorted in her life.
The father has an extensive driving history. He has repeatedly flouted the laws of the road. He has lost his licence on a number of occasions. He says that he is now in a position where he would be lawfully able to obtain a licence, but because of a history, he says, of having been involved in, I think it was 13 car accidents, he chooses to not drive in the future but chooses to be reliant upon public transport. It certainly seems to me there is no reason to think that the citizens of (omitted) would be benefitted by the father driving.
To get from (omitted) to (omitted), for the purposes of visits at a contact centre, both of the parents, if they were to undertake the trouble on the day of the visit, would have to take the one available bus which leaves from the (omitted) areas some time around 7 am. They would then, and the children, be on the same bus travelling to (omitted). When they got to (omitted), there would then be a journey from where the bus gets in to where the contact centre is. It would seem that neither of them have the financial capacity to make that trip other than by walking. There would then be a two-hour visit at the contact centre, after which there would be a walk back to the bus station, waiting for the bus, and then taking the same bus back to the (omitted) area.
Bearing in mind the injunction which I made at the commencement of these orders, I cannot imagine for a moment that it would be preferable for the mother and children to be required to make that journey in the same manner that it seems the father would be making that journey.
Up until now, the mother has had the benefit of her mother assisting her with travel. The contact centre is only open for visits on a Friday, Saturday, or Sunday. The maternal grandmother has employment which she has had to take leave from to make herself available to transport the children and the mother from the (omitted) area to (omitted) for the purposes of the contact visits.
There is a contact centre closer to the area where the parents live. It is still some distance away and also would require some changes of buses, plus some walking. It also has quite a long waiting list. There is no benefit to a contact centre other than the (omitted) contact centre being contemplated.
The father was asked in cross-examination whether there was anything that he could do by way of offer of assistance or otherwise to make the mother’s transport to the contact centre any easier to occur. He seemed perplexed by that question and was unable to provide any sensible response.
At the very least, if I was to consider that the father was to spend time with the children for identity contact once every three months, it would seem to me that the orders that I would need to put in place would include a prohibition from the father travelling on public transport on the day of the visits and would also need to include some form of notice by the father to the mother that he intended to make himself available of the visit at that three-monthly time. There are a couple of reasons for that. One is that the father has previously failed to attend, even when the visits were to be monthly during the interim period, and the other is that the father has threatened suicide in the event that he does not get the outcome that he desires. Mr A, he spoke of this at some length. I read from paragraph 10 of Mr A’s report:
…
During the phone interview, Mr Peterson was highly distressed and distraught throughout much of the call, sobbing for large periods of time. During the call he repeatedly said that he felt like his only option was to kill himself, that he was falling apart, that he would be devastated and wouldn’t be able to cope if he only received Sunday visits with the children. Mr Peterson said that he lives for the kids, if he couldn’t see them he would give up on life and that he is feeling powerless and hopeless. Mr Peterson said that the bond between him and the children was phenomenal but that it was slipping, and that he couldn’t even get through the weekend when Y wouldn’t talk to him on the phone for the most recent Friday contact. Mr Peterson said that he knew that Ms Watts had a new partner and that this man was caring for his children and it cut him deep inside. Mr Peterson said that he wouldn’t actually kill himself, but that’s how the situation made him feel. He felt he was being failed by the system, that it was the Court that was letting him down and forcing him to feel this way.
He has, in other places, expressed similar views. It’s the view of the psychiatrist – and which I accept – that this isn’t really a suicide threat, that there is no suicide ideation, but that rather this is an example of the father’s manipulative behaviours, his grandiose notion that if people knew that he was not going to be around, that they might then need to do what he requires of them. But it does seem to me that there would be every reason for the mother to consider that he may not make himself available to three-monthly time at the contact centre.
As best as I can understand the notion of identity contact, I would understand that to mean that that was to ensure that the children maintained some personal working knowledge of their father, that they would continue to have sufficient contact with him to be able to keep alive a memory of him, but that it would be not so frequent so as to be as disruptive to them and their developments and their own particular needs.
I would understand it to be, in part, a reflection that more frequent time between the children and the father would, in fact, produce adverse sequelae for them, that if the children experienced nightmares, bed-wetting and night screaming after seeing their father, their time should be limited so that those adverse experiences do not happen so frequently that the children’s lives in general are being constantly disrupted.
Perhaps in situations where there is a child placed by a child protection authority in an out-of-home placement where there is no other contact with the child’s family of origin there is a particular need for identity contact. These children though can continue to receive their identity as a member of their mother’s family through an order which has the children live with their mother. In terms of their need to have the identity of their father and their place within his family of origin and what he might have to offer them, unless there was something positive which might be gleaned from that time, I struggle to see how that fits within the requirements of the legislation with respect to a meaningful relationship.
The father is presently not in a position to have a meaningful relationship with the children himself. The corollary of that is the children cannot have a meaningful relationship with him. His personality is such that in every respect the children are at risk of emotional and psychological harm when they are exposed to him. By minimising the frequency in which they might see him does not, in any way, change the father’s behaviours. The father has demonstrated no insight into the need to change his behaviours. There is no reason for the Court to consider in the future that he is going to develop that insight. Without that insight, there is no reason for the Court to consider that he will change his behaviours, and without changing his behaviours, the contact that he has with the children will only be negative and adverse for them.
I do not consider that the children’s cheerful and loving greeting of their father at the contact centre means that if I take away this minimal supervised time, that that will have an adverse sequelae for the children. The children have seen little of their father, and the adverse consequences experienced by them after seeing their father are marked. They have already been so badly damaged by the family violence which they were born into and which they lived in until their mother escaped in November last year.
All of that is the responsibility of the father: the violence, the bad behaviour, the poor parenting. Even the poor parenting by the mother is the responsibility of the father, and it is his responsibility, because he was the one who commenced a relationship with a child. He was the one who was violent to that child and then young woman, and he was the one who created the situation where the mother and children lived their lives in fear.
Without taking responsibility for that situation – which he hasn’t done and which he blatantly denied in Court – he does not provide any opportunity for there to be any reason for the Court to consider that he will do something differently in the future. I struggle to see that for four occasions per year, for two hours at a time, that the children will either experience a meaningful relationship with this maladaptive, damaged father or that they will be kept safe from harm. I can neither consider that the proposal put forward by the Independent Children’s Lawyer provides either for a meaningful relationship or to keep the children safe from harm.
Within the structure of Part VII of the Act, it tells me that I should attend to the issue of parental responsibility and I should attend to the issue of the time that a parent spends with a child by reference to the best interest factors which are set out in s.60CC. Those factors are set out as primary considerations and additional considerations. I have thus far, for the main part, focused on the primary considerations which are twofold: the meaningful relationship and the need to keep children safe from harm.
Within the presumption of equal shared parental responsibility, there is the clear rebuttal of the presumption where there are issues of child abuse or family violence. I am clearly wholly satisfied that there has been family violence and that it has been perpetrated by the father on the mother. It seems clear to me within these reasons, therefore, that the presumption of equal shared parental responsibility is wholly and completely rebutted and that the mother must have sole parental responsibility for the children.
That being the case, there is no legislative requirement for me to be contemplating the children spending equal time or substantial and significant time with the father. Within that definition in the Act in s.65DAA there is the issue of the reasonable practicability of those styles of orders. Within the reasonable practicability as discussed by the High Court in MRR & GR (2010) 240 CLR 461was the issue of the feasibility of orders.
Although the orders which are sought by both the father, the mother, and Independent Children’s Lawyer do not fall within the definitions of equal time or substantial and significant time, it seems to me that the notion of feasibility of the orders that the Independent Children’s Lawyer and the father sought needed to be considered. I did not consider that there is any great feasibility in the notion that the children spend supervised time with the father every three months for a period of two hours.
It should be clear from the decision which I have given thus far that I have no intentions of finding that the orders sought by the father are orders which should be made. The father seeks unsupervised time with the children. I cannot for a moment consider that the children would be physically safe, emotionally safe, or psychologically safe if they spent time with the father on an unsupervised basis.
The father does not proffer any alternative position. He never has, and he has not contemplated it at all during the course of this trial. He was asked specifically if he had, and he was resolute that he had not. The submissions made on his behalf thoroughly and completely by Mr Tester, who could not have done more for his client, were also based on that same position. It has been the father’s position from the commencement of these proceedings by the mother, and it remains his position now. It seems to me that this is yet another feature of the father’s antisocial personality disorder, that he cannot see matters from any position other than his own.
The mother’s position then is that she needs the protection of the injunction. I consider that she and the children do require the long-term protection from the injunction made on a final basis by this Court. Apprehended violence orders or family violence orders made by Magistrates Courts, to the best of my knowledge, only ever last for a maximum of two years.
The mother had the benefit of a family violence order which protected her in Tasmania. In seeking to have that order registered in New South Wales, because the children were not contained on the order, she was not able to have them protected. Because the order was made in Tasmania, she was not capable of having it varied in New South Wales. The order that the mother has from Tasmania, as best as I can tell, is an order which was made either in November or December 2009, and it was made for a period of 12 months.
I do not consider that it is appropriate or necessary, given the provisions of the Act, for the mother to have to seek, on her own behalf, a New South Wales order upon the expiry of the Tasmanian order. If this Court is in a position to provide protection to the mother and the children through an order pursuant to the Act, and given the circumstances of this case, it seems to me that it is highly appropriate and necessary for the protection of the mother and the children that that order be made in this jurisdiction.
That means, therefore, that it does not have the deficiency which the state orders have in terms of it expiring at a particular time. For all of the reasons which I had earlier provided with respect to the violence perpetrated by the father on the mother and on the children and on the mother in the presence of the children, I consider that that order which I made at the outset was necessary for the protection of the children and the mother.
I turn then to what orders might be made for the children’s relationship with the father into the future. Pursuant to the best interest factors, I have focused on the primary considerations. Within the additional considerations, there is clearly the issue of family violence and family violence orders raised. There are issues in terms of the parent’s capacities, in terms of the capacity of a parent to provide an ongoing relationship between the children and the other parent, the willingness and ability of a parent to facilitate and encourage a close and continuing relationship.
In terms of the matters which might be relevant under s.60CC sub (3), it seems to me that the comments which I have already made, for the most part, were the matters which are determinative in this issue in this matter.
The mother does not have a willingness or ability to facilitate and encourage a close and continuing relationship between the children and their father. If, in fact, she did, I could only be critical of her for failing to protect the children. In this case, the mother should not have a willingness or ability to facilitate and encourage a close and continuing relationship, because a close and continuing relationship between the children and the father in this case could only be to the detriment of the children. In terms of the likely effect of any change in the children’s circumstances, including any separation from their father, the mother has formed the view that that can only be what is best for the children. I agree with the mother.
The father may in the future have something to offer the children, but until he has any understanding of his past behaviours and how those behaviours have been, in every way, wrong, he has nothing positive to offer the children in their lives. This is extraordinarily sad for the children, because, as all children, they would love to love both their mother and their father. I can only consider that them being separated from their father will enable them to be able to heal from their past experiences and to have their best chance of not developing the dysfunctional relationships in their lives that their father has persisted in having in his own.
In terms of the capacity of the mother to provide for the needs of the children, including their emotional and intellectual needs, the mother has, since her escape from the father’s violence, done everything within her power to start to rebuild her own capacity to be able to provide properly for the children. She was not providing properly for the children when she lived in a violent household, but she has now started to address that. She still has some way to go, but she receives the support of her mother, and she receives the support of professional assistance. There is no reason for me to consider that the mother is not heading absolutely in the right direction.
In terms of the attitudes to the children and to the responsibilities of parenthood demonstrated by each of the child’s parents, I am satisfied that the mother has demonstrated absolutely that she understands that the children living in a violent household was a poor outcome for them and that she needed to leave. I am satisfied that the father does not understand that to be a poor outcome. Indeed, possibly because of his own maladaptive childhood, he seems to consider that, in fact, his behaviours in every way have been reasonable. The father’s attitudes to the children and to the responsibility of parenthood are, in every way, defective.
I take into account that there is no method of providing for supervised time other than the (omitted) contact centre. I take into account that the method of transport to the (omitted) contact centre is so limited for both the mother and the father that there is no practical way that that can occur on a long-term basis. I take into account the lack of utility in the long term of children having supervised time with a parent in the limited settings that a contact centre is. I take into account the level of expertise that a supervisor would need to have according to the evidence of Dr I. I take into account the father’s complete failure to understand how his behaviours in the past and continuing in the present have led himself to a situation where the children are not able to have a meaningful relationship with him.
I cannot, in the circumstances, endorse the father having any time with the children, and I make an order for no contact. That order will include that there will be no telephone communication. There is no benefit to the children in having telephone communication with a father who is unable to understand his behaviours.
I note for the record that the father has left the courtroom and that he was in tears when he did.
ORDERS DELIVERED
RECORDED: NOT TRANSCRIBED
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Demack FM
Date: 11 October 2010