Wenlock and Torrance
[2007] FMCAfam 642
•10 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WENLOCK & TORRANCE | [2007] FMCAfam 642 |
| FAMILY LAW ─ Children ─ preliminary, partial reasons ─ where father angry and embittered towards mother ─ where father has involved children in dispute with mother ─ where children’s best interests demand that they cease living with father and commence living with mother. |
| Family Law Act 1975 (Cth) |
| Smythe (1983) 8 Fam LR 1029 |
| Applicant: | MS WENLOCK |
| Respondent: | MR TORRANCE |
| File number: | MLM 7236 of 2006 |
| Judgment of: | Walters FM |
| Hearing date: | 10 August 2007 |
| Date of last submission: | 10 August 2007 |
| Delivered at: | Shepparton |
| Delivered on: | 10 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr T.J. Puckey |
| Solicitors for the Applicant: | Morrison and Sawers |
| Counsel for the Respondent: | In Person |
| Counsel for the Independent Children's Lawyer: | Mr D.J. McLeod |
| Solicitors for the Independent Children's Lawyer: | Faram Ritchie Davies |
ORDERS
FINAL ORDERS
All previous parenting orders be discharged.
The mother have sole parental responsibility for the children, S born in 1995, J born in 2000, K born in 2002, J born in 2003 and E born in 2005 ("the children").
The children live with the mother.
OTHER ORDERS, INCLUDING ORDERS UNTIL FURTHER ORDER
Commencing on the weekend of 22/23 September 2007 (or as soon thereafter as shall be reasonably practicable), and subject to paragraphs 5 to 14 below, the father spend time with the children – on a supervised basis – for two hours each fortnight.
The supervised time to be spent by the father with the children pursuant to paragraph 4 above –
(a)do occur at such Contact Centre ("the Contact Centre") as shall be agreed upon between the parties (or, in default of agreement, as shall be nominated by the Independent Children's Lawyer after consultation with the parties); and
(b)do continue for a period of not less than four calendar months from the date of commencement of such supervised time spent.
Each party shall:
(a)contact the Contact Centre as soon as practicable and arrange an appointment for assessment for suitability for supervised time;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre; and
(e)comply with all reasonable requests or directions of the staff of the Contact Centre.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in these orders, then each party and the Independent Children's Lawyer have liberty to apply on 7 days written notice to the other party and to the Court.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the father is to spend time with the children each fortnight at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.
In the event that the Contact Centre offers supervised time only at times which are less regular than once per fortnight, then time will be spent at the times which are offered by the Contact Centre.
The mother shall deliver and collect the children, or cause the children to be delivered and collected, to and from the Contact Centre at the times specified by the Contact Centre, and on each occasion promptly leave the building and the vicinity.
Time under order 4 above is to be supervised by the Contact Centre, and each of the parents shall pay one half of any fees for the supervision on each occasion of supervision.
The father shall not attend the Contact Centre or its vicinity before the time with the children is to start and shall promptly leave the Contact Centre and the vicinity when his time with the children has ended.
If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children's Lawyer have liberty to apply on 7 days written notice to the other party and to the Court.
The period of supervised time to be spent provided for in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event time is to be spent at times when the services can be provided by the Contact Centre.
Provided that the father's supervised time spent at the Contact Centre pursuant to paragraphs 4 to 14 above has proceeded successfully for 4 calendar months from the date of its commencement (or a total of 8 supervised sessions – whichever shall be reached last), the father thereafter, and until further order, spend time with the children (on an unsupervised basis) from 9.30 a.m. to 6 p.m. each alternate Saturday.
Until further order, and save as provided for in these orders, the father, his servants and agents be restrained by injunction from approaching or contacting, or attempting to approach or contact, the children or any of them – including at their school, preschool, kindergarten or other day care or educational facility or institution.
The father do submit to a psychiatric assessment by a psychiatrist nominated by the Independent Children's Lawyer, with each party to contribute equally to the cost thereof (subject to Victoria Legal Aid funding), and such psychiatric assessment or report be provided to the father, the mother and the Independent Children's Lawyer by not later than 4 p.m. on 21 September 2007.
Until further order, for 24 hours immediately prior to the commencement of any time spent with the children (including supervised time spent at the Contact Centre), and during all such time spent, the father be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, alcohol and/or any legal or illegal drug or substance (including marijuana), save and except for:
(a)any legal medication prescribed for the father by a registered medical practitioner, and taken or used by the father strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major pharmacies or supermarkets, and taken or used by the father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
Until further order, the father do undertake supervised drug screen testing ("the testing") as follows:
(a)the testing do occur at a Pathology Centre or other appropriate place, as approved by the Independent Children's Lawyer from time to time;
(b)the testing do occur randomly (but not less frequently than once in any 8 week period), and within 48 hours of the Independent Children's Lawyer making an appropriate request for the testing to occur; and
(c)the results of the testing, on each occasion, be forwarded – as soon as practicable – to the solicitors for the mother and the Independent Children's Lawyer.
Until further order, the father, his servants and agents be restrained by injunction from filming, photographing, videotaping or digitally or electronically recording images of the mother by any means whatsoever (including, but not limited to, by still camera, video camera or mobile telephone).
Until further order, the mother, her servants and agents (including Mr Atwell) be restrained by injunction from physically disciplining the children or any of them.
Until further order, the mother do:
(a)advise the father immediately in the event that any of the children suffers any serious illness or injury, provide the father with the name and address of any health care professional or health facility attended by the child in the event of such a serious illness or injury, and authorise such health care professional or health facility to provide to the father any information requested by him relating to the health of the child;
(b)authorise any school attended by the children or any of them from time to time to:
(c)provide to the father, at the expense of the father, copies of all school reports, school notices and school photographs relating to the children or any of them; and
(d)communicate with the father (either by telephone, in writing or by personal attendance) in relation to the educational progress of the children or any of them.
Until further order, and whilst the father is spending time with the children pursuant to these orders, the father do advise the mother immediately in the event that any of the children suffers any serious illness or injury, provide the mother with the name and address of any health care professional or health facility attended by the child in the event of such a serious illness or injury, and authorise such health care professional or health facility to provide to the mother any information requested by her relating to the health of the child.
Until further order, each party do keep the other party advised of his/her residential address and contact telephone numbers (including mobile telephone numbers) at all times, and do forthwith advise the other party of any change in such details.
Until further order, the father, his servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother; and
(b)discussing these proceedings,
(c)to, with, or in the presence or hearing of the children (or any of them), and from permitting any other person to do so.
Until further order, the mother, her servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, repeating or otherwise denigrating the father; and
(b)discussing these proceedings,
(c)to, with, or in the presence or hearing of the children (or any of them), and from permitting any other person to do so.
Until further order, both parties, their servants and agents be and are hereby restrained by injunction from showing or otherwise revealing to the children (or any of them) any:
(a)evidence given;
(b)document, video image or other thing tendered;
(c)affidavit filed; or
(d)transcript prepared,
(e)during or for the purposes of these proceedings (including during the trials in February 2007 and August 2007).
The father do vacate the property situated at M ("the mother's house") within seven days, leaving it in good and tenantable repair and condition, and thereafter the father, his servants and agents be restrained by injunction from entering or remaining within 20 metres of the mother's house (or any part thereof).
Until further order, the father, his servants and agents be restrained by injunction from:
(a)selling, disposing of, transferring, assigning, adversely dealing with, charging, encumbering, further encumbering or otherwise dealing or attempting to deal in any way whatsoever with the mother's house or any part thereof;
(b)removing from the mother's house any chattels, fixtures or fittings which are not solely the property of the father;
(c)doing, causing, authorising or facilitating any act or thing which has or may have the effect of:
(i)demolishing, razing, dismantling, breaking, defacing, polluting or damaging the mother's house (or any part thereof) in any way whatsoever,
(ii)diminishing the utility or aesthetic appeal of the mother's house (or any part thereof) in any way whatsoever; and/or
(iii)diminishing the value of the mother's property (or any part thereof),
without the express written consent of both the mother and her solicitors having first been obtained.
If during the currency of these orders the parties and the Independent Children's Lawyer all agree in writing to vary these orders, then the parties have leave to list the proceedings on an urgent basis to apply for the making of consent orders.
A copy of these orders, and a transcript of the reasons for judgment, be served upon the Department of Human Services as soon as practicable.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
The mother's costs of and incidental to the within proceedings be reserved, and the parties have liberty to make relevant submissions in writing as follows:
(a)any submission in support of an order for costs must be filed and served by not later than 4 p.m. on 31 August 2007; and
(b)any submission in response to such a submission must be filed and served by not later than 4 p.m. on 21 September 2007.
All extant applications otherwise be adjourned to the August 2008 sittings of the Federal Magistrates Court in Shepparton, in the defended list.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Walters delivered this day will for all publication and reporting purposes be referred to as Wenlock & Torrance.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SHEPPARTON |
MLM 7236 of 2006
| MS WENLOCK |
Applicant
And
| MR TORRANCE |
Respondent
REASONS FOR JUDGMENT
(Partial and Preliminary)
(Ex Tempore)
I have said throughout this trial that I would do my best to indicate to the parties at the end of the case what my decision will be, and that I would provide more detailed Reasons at a later stage. I have listened very carefully to all the evidence that has been presented over the past few days. I have also listened carefully to the submissions made by Mr McLeod on behalf of the independent children’s lawyer, by Mr Puckey for the mother and by the father himself.
To the extent that it might be necessary or useful for me to record, I want to say that these Reasons are being delivered orally, and on an ex tempore basis. I reserve the right to amend them should it become necessary for me to do so. They are, in any event, partial or summary reasons only and I shall deliver a final judgment as soon as I am able to do so.
I propose to order – on a final basis – that the mother have sole parental responsibility for the children, and that they live with her.
The father's time to be spent with the children (which time I shall describe – for ease of grammatical construction – as “contact”) is a matter that has troubled me greatly. Mr McLeod has argued that the father should have no contact. Mr Puckey, on the other hand, has suggested that some form of contact (after an initial settling-in period) remains appropriate.
I had initially thought that a parenting course might assist the father to come to terms with the anger that he so clearly feels, and the frustration that he has experienced resulting from or arising out of the breakdown of his relationship with the mother. I had hoped that such a course might enable the father to shift his focus from the mother and her partner to the best interests of his children.
But as I commented during the course of closing addresses, the father's attitude seems firmly entrenched. He seems devoid of compassion or understanding in relation to any of the experiences of the mother – who became his partner at a very, very young age and who has borne him five children. I am not even certain that the father fully accepts that the children are his – notwithstanding the fact that there is not a shred of credible evidence before me to suggest that they are not his biological children.
The evidence of the father's father troubled me. Regrettably, he was equally as embittered and unreasonable as his son. That is a sad statement in itself, because, quite frankly, the father needs support, and for others with greater insight than he has to stand by him and help him through what is likely to be a very difficult period from his point of view. He also needs help and support with what would appear to be long-term drug problems, even if those problems do not amount to an addiction.
The father needs help to overcome the grief that he feels for the loss of the relationship that he had with the mother, even though he describes that relationship in relentlessly negative terms. As I have said above, one of the more tragic aspects of this case is the sad fact that the father’s own father appears incapable of being a support to him in that respect. Having seen the father's sister in the body of the court after she gave her evidence, however, I would hope that she might ultimately be able to step back a little from her rather harsh criticism of the mother, and to help her brother to come to terms with his problems.
And let me say that, on the evidence before me, they are indeed his problems; they are not caused solely by the mother. Clearly, in the earlier part of the parties’ relationship the mother had many problems of her own, and at times she behaved in what she has acknowledged was a wholly inappropriate manner. But, to her credit, she accepts that fact. She conceded it. From the evidence that I have heard, she has clearly dealt with it. It is to her credit that she has successfully moved forward from that point.
I would like to believe that the father can move forward as well, and that perhaps, in some way, these proceedings might be a watershed for him; that he might now step back a little and begin to look at the mother and his relationship with her, and his relationship with his children, in a different way, and in a gentler light. But, unfortunately, the evidence before me (including the attitude and demeanour of the father) does not allow me to realistically form that belief, or maintain it to any significant extent.
It seems to me that the father should have no contact with the children for an appropriate transitional period. Thereafter, the father should have supervised contact with the children on something like a fortnightly basis.
Regrettably, the contact must be strictly supervised until such time as the father has (and I have used this expression in other cases) served something of an “apprenticeship”, and can demonstrate that he has begun to deal with his own problems, and that he will no longer project those problems on to the mother.
Subject to submissions, I would have thought that a no contact period of approximately six weeks is appropriate. Thereafter, supervised contact should commence, and should continue for a period of approximately three to six months. Contact can then take place for a full day once per fortnight. But I regret to say that all of these arrangements are going to have to be carefully monitored and assessed.
I will require the father to be psychiatrically assessed before the contact moves from supervised contact in the strict sense to unsupervised daytime contact.
It follows from the above that there is no alternative but to bring the proceedings back before the court, and I therefore propose to adjourn them for a period of approximately nine months to one year for the orders that I have made to run their course, and to see how matters pan out.
If the father progresses well with his efforts to recognise, confront and deal with his problems (in the broadest sense) – assuming that he is prepared to make such efforts – then I see no reason why contact cannot move to a slightly longer period, and perhaps as long as one overnight period per fortnight . But it will have to be a slow process. Trust must be rebuilt, in the sense that the father is going to have to demonstrate to the mother that he can be trusted as a responsible parent, who is prepared to allow the children to love and respect their mother, and have a full – and meaningful – relationship with her.
In my opinion, the mother has already done more than enough to earn the father’s trust and respect. The fact that the father is either unable or wholly unwilling to grant her that trust and respect says far more about his intransigent attitude and unwarranted anger towards the wife than it says about anything that she may have done or not done as a parent or as a person.
I observe that the father is saying – as I give these brief, ex tempore preliminary reasons – that he is not minded to see the children at all. That is a matter for him, and may well end up answering (in his mind) all his problems as he perceives them. But I urge him to think, instead, of the best interests of the children.
I propose to order, as well, that the father be drug-free (save for prescribed medication taken in accordance with appropriate prescriptions) whenever he sees the children; that is, during both the supervised and unsupervised contact periods (assuming that we are able to move to that point).
The requirement that the father be drug-free will continue until further order. Similarly, a testing regime will have to be put in place so that the independent children's lawyer can be persuaded that the father is in fact drug-free (apart, of course, from prescribed medication taken in accordance with the prescription), at any time that he sees his children. They need his full attention when he is with them, and he must be free to think clearly and to focus upon their best interests at all times.
I propose to order the form of injunction sought by Mr Puckey on behalf of the mother, pursuant to sections 68B and 64B(2)(i) of the Family Law Act. That will restrain the father from entering or remaining upon the property registered in the mother's name, and I will give the father seven days to vacate that property.
There will also be an order that the father is to leave the property in good condition. I will leave it to counsel to draft the precise terms of that provision, but it will be something equivalent to "good and tenantable repair and condition".
I propose to order, as well – and I will leave it to counsel to draft – an injunction that will restrain the father from videoing the mother, or recording her in any way; that is, by digital recording, by video, by phone camera or in any other way until further order of the court.
She must be left to get on with her life in peace.
There will be a further injunction restraining the father from approaching the children at their school. He must take a step back at this stage, and allow his children to have – as best they can – a normal and relatively uneventful transition to life with their mother. The father will always remain part of their lives, and within the next few weeks or months, he can hopefully spend greater time with the children. But at this stage they need the protection that the orders that I am making will provide. I do not believe that the orders that I propose will prevent the father from having a meaningful relationship with the children. Indeed they will promote such a relationship in a positive way.
Turning now to the evidence before me, I wish to record that where the evidence of the mother and Mr Atwell conflicts with the evidence of the father, I have not the slightest hesitation in preferring the evidence of the mother and Mr Atwell. They were balanced witnesses; they were impressive witnesses, and I have no reason to doubt their credibility.
The father, I regret to say, was anything but an impressive witness. He falls into the category of one of the least impressive witnesses that I have ever had the misfortune to listen to and observe. He said whatever he thought might assist his case, without regard for what may have actually been the truth, and when I give final reasons in this matter I will expand upon that comment. In short, he was not a credible witness. He was and is still filled with anger, frustration and resentment.
I regret to have to record that the father has involved the children in these proceedings (as the video of the two elder girls, and the circumstances surrounding its production, makes abundantly clear). He has encouraged them to make allegations against and criticisms of the mother. I am inclined to the view, however, that not only do the children know full well that those allegations are not true and that the criticisms are unjustified, but it is also likely that the father himself knows full well that the vast bulk of those allegations and criticisms are not true and unjustified. They reflect his anger and frustration at the lack of control he now has over the mother's life, and (perhaps) at actions that she may have taken in the distant past.
I intend by the proposed orders to give the father a fair chance – for the sake of his children, if not for his own sake – to have a meaningful and constructive relationship with his children. If the father is prepared to deal with his problems, then that relationship can flourish. Contact need not always remain at the level that I have indicated, and there is no reason why he cannot have more substantial contact with his children at a later stage. But at this stage, and on the basis of what I have seen and heard during the running of this trial, I have no doubt that the orders that I have proposed are in the best interests of the children.
The best interests of these children have been uppermost in my mind throughout these proceedings, and their best interests remain uppermost in my mind as I deliver these brief, preliminary reasons, and as I outline the orders that I propose to make.
I cannot deal with Mr Puckey’s submission in relation to costs at this very late stage in a full and extremely busy circuit. He can make that submission in writing, and he can send a copy of his submission to the father, who will have the right to respond to it. I would prefer that the very limited time still left today be spent preparing a minute to reflect the orders that I have indicated should be made.
By way of clarification, when I have spoken of supervised contact in these preliminary Reasons, what I mean is contact at a contact centre.
I propose to leave in place the injunction regarding physical discipline of the children. That is one of the matters that was of concern to the father and, on the basis of what the children have apparently said, to the children themselves. I do not know whether it really is a concern, but it is unopposed and, as I have said, I propose to leave the injunction in place.
The other injunction was in relation to the mother working. I propose to lift that injunction. It expires at 5 o'clock today in any case.
I have no discomfort whatsoever with a primary care parent working, provided that suitable arrangements have been made for the care of the children. There are thousands upon thousands of working fathers and working mothers who have the care of their children, and, in my view, the mother's efforts to improve her financial position by seeking employment outside the home are commendable, and the court does not wish to stand in the way of them. I only comment upon this subject because of the fact that the father has relied heavily upon it, and it seems to be a matter of grave concern to him – or, at least, that is the way he has endeavoured to run his case. Obviously, if the mother is going to be at home only rarely, then that fact might be a relevant consideration in determining appropriate parenting orders – but so long as the mother has made other care and supervision arrangements that are satisfactory, and provided that the children are not adversely affected, I am not sure what difference the fact that she is working actually makes.
I can recall that Holden CJ, the former chief judge of the Family Court of Western Australia, took the view that the fact that one party is working outside the home is close to an irrelevance, and that, provided appropriate supervision arrangements are made, that fact makes little or no difference to the outcome in parenting cases. The court is obliged to look at and weigh up many factors in such cases, and it is almost inevitable that some factors will favour one party over the other, whilst other factors will do the reverse. One needs to look at the totality of the evidence that is presented by each of the parties[1].
[1] In Smythe (1983) 8 Fam LR 1029 (at 1034), for example, the Full Court of the Family Court said:
In each case there will be a number of factors which have some bearing upon the welfare of the children. Those most relevant to the children’s welfare are given the most weight, those less significant are given less weight. It would not promote the welfare of the children to reach a conclusion that all factors relevant to the children’s welfare weigh evenly in the balance and then determine the issue by calling in some extraneous factor with no relevance to that welfare. When matters are said to weigh evenly or to be finely balanced, all that has occurred is that the court has not yet determined which of the factors of most relevance to welfare should be given pre-eminence over the others. Nor can the court resolve its dilemma by falling back on presumptions about status quo, or the mother’s role in relation to a young child. The court has pointed out on numerous occasions that there are no presumptions or onuses; there are factors which in a particular case may have more or less significance according to the circumstances.
Whether the Full Court’s comments in relation to the absence of “presumptions” remains good law in the light of the 2006 amendments to the Family Law Act is arguable, but the balance of the passage fairly summarises the type of exercise upon which the court must embark in parenting cases.
In this case, though, it is my view – principally for the reasons outlined by Mr Puckey in his closing address (which, in large part, I accept and adopt), and in relation to which I will go into more detail in my final Reasons – that it is not possible to leave the children in the care of the father. They need to be protected at this stage.
This matter will now be stood down for the preparation of a minute to give effect to these brief, ex tempore Reasons.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Rachel Peattie
Date: 6 September 2007
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