Zamojski and Hale
[2011] FMCAfam 647
•30 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZAMOJSKI & HALE | [2011] FMCAfam 647 |
| FAMILY LAW – Parenting – child aged 7 years – child has had no time with Father since child 11 months of age – impact of reintroduction on Mother’s emotional state – Father’s capacity to sustain a parental role and manage reintroduction sensitively – benefit to child of knowing Father – interim Orders made for limited supervised time. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA |
| Applicant: | MR ZAMOJSKI |
| Respondent: | MS HALE |
| File Number: | SYC 2371 of 2008 |
| Judgment of: | Sexton FM |
| Hearing dates: | 30 and 31 March 2011 |
| Date of Last Submission: | 31 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah |
| Solicitors for the Applicant: | Slattery Thompson Solicitor |
| Solicitor for the Respondent: | Mr Rugendyke |
| Solicitors for the Respondent: | Catherine Henry Partners |
| Solicitors for the Independent Children’s Lawyer | Stephen W Bell & Associates |
THE COURT ORDERS ON A FINAL BASIS THAT:
The Child [X] Hale born [in] 2004 live with the Mother.
The Mother have sole parental responsibility for [X].
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The matter be adjourned to 23 March 2012 at 9.30a.m. before me for further mention.
Pursuant to section 62G(2) of the Family Law Act1975 the parties and [X] attend upon Mr O in this Registry on a date and at times to be advised in late February or early March 2012 for the purposes of the preparation of an updated Report.
Within 7 days, the Father provide a written undertaking to the Court, such undertaking to be served upon the Mother’s solicitors and the Independent Children’s Lawyer, that he will make himself available for at least 12 consecutive monthly meetings with [X] under the supervision of a Contact Centre.
The Father forthwith make an appointment with his General Practitioner for a referral to a clinical psychologist, and the Father advise the Independent Children’s Lawyer the name and contact details of the clinical psychologist.
The Father attend upon the clinical psychologist at least fortnightly during the period of the adjournment.
Upon the Father’s compliance with Orders (5) and (6), both parties take all steps necessary to undertake and complete the intake assessment at the [omitted] Children’s Contact Service at [suburb omitted], and the Father meet any fees associated with [X]’s time with him at the Contact Centre.
Each party immediately notify the Independent Children’s Lawyer when a place for supervised time between [X] and the Father becomes available at the Centre.
Upon notification by either party in accordance with Order (9), the Independent Children’s Lawyer forthwith advise Mr O of the commencement date for supervised time.
[X] initially spend time with the Father under the supervision of Mr O, on Level 2 of this Registry, by arrangement with Mr O, and each party comply with any requests made by Mr O to facilitate [X]’s reintroduction to the Father.
Upon completion of the initial supervision period (or more than one if recommended by Mr O) in accordance with Order (11), [X] spend supervised time with the Father on one occasion each month for a period of two hours on each occasion, on dates and times to be arranged with the Centre noting that on any occasion [X] chooses to end the session before the two hours has expired, the Father accepts the session will be terminated, and the Mother will be contacted to collect [X].
The Independent Children’s Lawyer forward a copy of Mr O’s report and a copy of these Reasons for Judgment to the Father’s clinical psychologist prior to his first appointment.
Within 14 days, the Mother provide the Father with a current photograph of [X], a copy of his most recent school report, and details of his current interests and extra curricular activities.
The Mother be restrained from making any negative comment to [X] about the Father, or from permitting anyone else from doing so.
The Father be restrained from making any negative comment to [X] about the Mother, or members of the Mother’s family or household.
The Father be restrained from consuming any alcohol.
Within 7 days of these orders, each party provide the other party with a contact mailing address and email address.
In January 2012 the Mother provide the Father with the following:
(a)A current photograph of [X];
(b)A copy of [X]’s most recent school report; and
(c)A written report updating the Father as to [X]’s health, interests and progress generally.
The Mother notify the Father in the event [X] suffers a serious accident or medical emergency and keep the Father informed of his progress.
The Independent Children’s Lawyer have liberty to apply at 7 days notice.
It is noted that the Father agrees to pay the Mother Child Support for [X] and should forthwith contact the Child Support Agency to make those arrangements.
Pursuant to section 65DA(2) of the Family Law Act 1975 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 Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Zamojski & Hale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2371 of 2008
| MR ZAMOJSKI |
Applicant
And
| MS HALE |
Respondent
REASONS FOR JUDGMENT
This case concerns [X], aged 7 years. The parties have never married each other but lived together from 2002 until 2005, with a number of separations during that period, while each party was married to someone else.
The Applicant Father has not spent time with [X] since he was 11 months of age, neither has he seen him, apart from brief encounters in 2005/6. The Father wants to establish a relationship with [X] by spending time with him on any basis considered appropriate by this Court. At the commencement of the hearing, the Father also sought an order for [X] to be known as [X] Zamojski, but he withdrew that application during the hearing. The Respondent Mother opposes [X] spending time with the Father until [X] is older. In the meantime, the Mother agrees to keep the Father informed of her mailing address and of [X]’s academic progress and welfare.
Mr O, senior family consultant, prepared a report for the Court but did not make a clear recommendation as to whether or not [X] should be reintroduced to the Father. He presented two possible options for the Court’s consideration[1], which he says are both problematic but “entail the least risk with respect to [X]”. Under the first option, [X] would not be introduced to his Father until he were at least a few years older, eliminating various risks to his emotional well being and security, but denying him any opportunity to know his Father in the interim years. Under the second option, the proceedings would be adjourned for at least 6 months to enable [X] to spend time with the Father at a contact centre, approximately monthly. This would give the Father an opportunity to demonstrate his capacity to behave in a sensitive and responsible manner towards [X], but would be unlikely to provide sufficient time to give [X] the chance of forming a strong bond to his Father. This would safeguard him from being let down if the relationship could not be sustained. Mr O says:
Much depends in this matter on the sincerity or otherwise of the Father’s implied claim that, if he were to become a part of [X]’s life, he would behave in a sensitive and restrained manner towards [X] and his mother.
[1] At paragraphs 41 and 42 of Exhibit 1
The Independent Children’s Lawyer supports the first option, that is, that [X] not be reintroduced to the Father until he is older. The Independent Children’s Lawyer seeks orders providing for the Mother to provide the Father with information about [X], including his school reports and reports of his health and progress.
Each party was born in Czechoslovakia. The Father came to Australia in 1997, the Mother in 2002. The Mother, then 33 years, married Mr F, then 74 years, in November 2002. They have since divorced. She had an intimate relationship with the Father between 2002 and 2005, though the Mother says that the relationship was “on and off a hundred times.”[2]
[2] At paragraph 14 of Exhibit 1
The Father is 49 years of age. He obtained a degree in [omitted]in 1992 in Czechoslovakia. He has worked in Sydney as a [omitted], but not since 2005. He worked part-time until August 2010 but at the time of hearing was unemployed.
The Mother is 42 years of age and has been an Australian citizen since September 2007. She works as an [omitted] and is studying a [omitted] course at university. She has been in a relationship with Mr L, aged 38 years, since mid 2007. Mr L has a 13 year old child from a previous relationship. Mr L works [omitted] on a rotating shift basis.
[X] was born [in] 2004. Mr F was formally registered as [X]’s father. In late May 2005, the Mother and [X]’s Father separated when the Mother travelled with [X] to Slovakia for 4 months to see family. The Father claims to have unsuccessfully searched for them overseas for several months, before returning to Australia in October 2005. He claims to have seen [X] briefly between late 2005 and March 2006, and to have last sighted him in April or May 2006. For the following two years, the Father says he gave up because he had no money for a lawyer and did not understand the legal system. However, during that period, he divorced and obtained Australian citizenship.
Short history of proceedings
In April 2008, the Father commenced these proceedings by seeking an order against the Mother for DNA testing, but was unable to locate the Mother for service of the documents. On 6 May 2008, the Father sought a Watch List order. The Application meant [X]’s name was placed on the Airport Watch List, preventing him from leaving Australia. The Father did not know the whereabouts of the Mother or [X].
On 9 July 2008, the Father filed an Amended Application seeking a location order and on a final basis, inter alia, time with [X] each Sunday from 1.00p.m until 5.00p.m.
In July 2008, Mr F, recorded on [X]’s birth certificate as his father, was named as the Second Respondent.
In August 2008, the Court made a location order. However, the Mother was not served with the Father’s initiating application until early 2009.
On 14 December 2008, the Mother attempted to leave Australia with [X] for Slovakia to visit the Mother’s dying sister. The Mother discovered at the airport that the Father had commenced proceedings and [X]’s name was on the Airport Watch List.
By February 2009, the Mother had sought the advice of a counsellor at Relationships Australia about reintroducing [X] to the Father.
In April 2009, parentage testing established that the Father in these proceedings was [X]’s biological Father. The Court made orders for the Birth Register to be amended accordingly. Mr F withdrew from the proceedings. The Mother was permitted to travel overseas with [X] for a period of two weeks to attend a memorial service for her sister, who had died in February 2009. An order was made by consent for [X] to live with the Mother and to spend time with the Father “as agreed between the parties”. The Court further ordered by consent that the parties attend Relationships Australia to facilitate arrangements for [X] to be reintroduced to the Father and to explore how, and under what conditions, [X] would spend time with the Father. The parties were also ordered to attend a child dispute conference in the Sydney Registry. At that time, the Mother supported [X] being reintroduced to the Father, though opposed unsupervised time.
Between July and December 2009, by arrangement with Relationships Australia, on a monthly basis, [X] consulted a child psychologist, Dr S. In November 2009, the Court appointed an Independent Children’s Lawyer. In December 2009, the court ordered the Father to attend a parenting skills course.
On 17 December 2009, Mr O noted in his Memorandum to the Court that [X] was not reintroduced to the Father through Relationships Australia, as foreshadowed in April 2009, because Dr S believed that the Mother suffered from Post Traumatic Stress Disorder and was fearful of the Father.
In April 2010, Mr O prepared a Family Report for the Court.
At the time of hearing at the end of March 2011, [X] had not been reintroduced to the Father.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3) to the extent they are relevant. Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act, set out in section 60B of the Act, are to ensure that the best interests of children are met by (in summary):
·ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Issues
[X] does not know the Father. He has not spent any time with him since he was 11 months of age. [X] is living in a happy and stable family situation with the Mother and Mr L and progressing well. The question in this case is whether it is in [X]’s best interests to be reintroduced to the Father at this time. If the answer is yes, then the parties agree that [X] would spend time with the Father initially on a monthly basis, under supervision in a contact centre.
On the question of whether time should start, the evidence raises a number of critical questions:
a)Would orders requiring [X] to spend time with the Father so seriously affect the Mother’s emotional state, that [X] would be adversely affected? One of the issues here is whether or not the Mother is capable of and/or willing to support [X]’s reintroduction to the Father.
b)Is the Father likely to sustain a regular supervised time arrangement, and if not, what is the likely effect on [X]?
c)Does the Father have the capacity to behave in a sensitive and restrained manner towards [X] and towards the Mother?
Likely impact of reintroduction on Mother’s emotional state
In the Mother’s initial conferences with Mr O in 2009, the Mother believed that it was in [X]’s best interests for him to be reintroduced to the Father. In her Response filed on 27 April 2009, the Mother sought a final order for [X] to spend time with the Father by agreement with her. The question at that time was when and how the reintroduction would take place.
With the consent of the parties, the Court ordered the parties to attend Relationships Australia to make arrangements for the reintroduction. [X] received counselling from Dr S, a clinical psychologist, to prepare him. Dr S formed the view that the Mother suffered from Post Traumatic Stress Disorder (PTSD) as a result of the Father’s behaviour towards her during their relationship. Dr S says[3] that given [X]’s strong attachment to the Mother and the likely impact of the Mother’s emotional well being on [X], any exacerbation of the Mother’s symptoms would have adverse consequences for [X].
[3] At Annexure B to Mother’s affidavit filed 21 December 2009
In her letter to the Mother’s solicitor, dated 7 November 2009, Dr S listed symptoms the Mother reported experiencing during the 5 years following the termination of her relationship with the Father[4]:
[4] At Annexure B to Mother’s affidavit filed 21 December 2009
i)Decreased and interrupted sleep; nightmares and high anxiety when trying to sleep.
ii)Intrusive memories regarding her experiences which cause strong reactions including: shaking, heart racing, shortness of breath when recalling scary experiences when living with the Father.
iii)Intense physiological reactions when talking about the Father and heightened fear at his possible motive and reactions to her if [X] should have access to him.
iv)Hypervigilance to perceived danger. Unwilling to engage in meeting unfamiliar men as feels cannot trust them.
Dr S referred the Mother to Ms B, clinical psychologist. The Mother consulted Ms B on 5 occasions, having cancelled an additional four appointments, up to the date of hearing. According to Ms B’s notes of the Mother’s initial assessment on 23 June 2010[5], the Mother presented as “teary, tangential and scattered”. Ms B reported the Mother being concerned about [X] seeing the Father and feeling upset when reminded of him. The Mother described her symptoms as “nervous, shaking, heart racing, heaviness in chest, breathlessness, inability to concentrate or focus, forgetful, fatigue, insomnia, nightmares, waking up sweating, crying.” She told Ms B she was scared the Father might take [X] and that she would be unable to protect him. The Mother reported having “difficulty trusting in relationships” and said that she “wants to learn to manage feelings better.” In her letter to the Mother’s referring doctor dated 25 June 2010, Ms B reported[6]:
[The Mother] presented for assistance with symptoms of post-traumatic stress related to a past abusive relationship. These include re-experiencing symptoms (such as recurring distressing dreams and intense emotional and physiological responses to reminders of her ex-partner), persistent avoidance of reminders of the relationship (such as thinking or talking about it) increased arousal (such as disrupted sleep, diminished concentration, and hypervigilance).
The precipitants of these symptoms include recent contact with her ex-partner [the Father].
[5] Exhibit 2
[6] Exhibit 2
The Mother continues in therapy. Neither Dr S nor Ms B gave oral evidence.
Mr O explained that if the Mother was suffering from Post Traumatic Stress Disorder (PTSD), she would re-experience the emotions and feelings which she felt at the time of the trauma, at the time of any precipitating event. She would need cognitive behaviour therapy and/or medication to recover. Mr O says he is unable to say whether the Mother has symptoms of PTSD or the actual disorder itself, but in his view, it is possible that the Mother’s condition arises from the Father’s behaviour during their relationship. He says that Post Traumatic Stress Disorder in the Mother is not, in itself, a reason not to reintroduce [X] to the Father. It would depend on the severity of the Mother’s condition.
The Mother is convinced that the Father has not changed since the time they lived together. She fears he may still be drinking and may continue to have difficulty controlling his anger. By way of example, she reports observing his behaviour towards her solicitor at Court during these proceedings, and she refers to an angry exchange reported to her between the Father and a Relationships Australia staff member when there was an appointment mix up, and the Father had expected to see [X].
I find it noteworthy that on the evidence available as to the Mother’s emotional condition, Mr O does not unequivocally recommend that the reintroduction be deferred for a number of years. One option Mr O recommends the Court consider, is a limited reintroduction now, under closely supervised conditions. Mr O says there is certainly a risk that the Mother may not be able to contain her own fear, and if that is so, the reintroduction process would have to stop to avoid [X] associating the Father with a fearful situation, as this would impede a future relationship between [X] and the Father.
It is encouraging, however, that Mr O formed the view that, if ordered by the Court, the Mother would go out of her way to support [X] meeting his Father, because of her commitment to [X] and her love for him. The question remains as to whether the Mother would manage her own feelings of apprehension, and/or whether, if the Father managed the reintroduction sensitively and [X] adjusted well to seeing the Father, the Mother’s condition would improve.
If reintroduction occurs, the Father’s capacity to sustain a parental role
Mr O raises concerns as to whether the Father has the capacity to sustain a parenting role, given he is untested as a Father since [X] was 11 months of age. Consistent with these concerns is the Father’s failure to provide [X] with any financial support over the last 5 years.
The Father would like a few hours with [X] every week, so he can share his life experience and introduce him to music and to nature, his particular interests. Mr O does not recommend that a full and active relationship be encouraged in the short term. He recommends that any time be started in a very limited way to give the Father time to prove that he can sustain a parental role, whilst protecting [X] from any sense of abandonment that might follow from him bonding with the Father and the Father giving up.
However, the Father claims that he will do whatever is required of him, even if [X]’s time with him is initially infrequent and limited. The Father says he has made positive changes to his lifestyle and has matured. The Father says the Court should have regard to his patience during this litigation process. He has waited 3 years since commencing proceedings to have his case properly considered. The Father also asks the Court to have regard to the fact that he has not attempted to contact [X] or the Mother for the last 5 years, in accordance with the Mother’s wishes.
I accept that it is the Father’s intention to develop a relationship with [X] if at all possible. Certainly, the Father has been steadfast in his commitment to re-engage in [X]’s life, since these proceedings commenced in April 2008. Even after the Father anticipated a reintroduction through Relationships Australia, and it did not proceed, the Father attended Court on each occasion as required, and adhered strictly to orders including attending a number of courses to enhance his parenting skills.
The Father’s capacity to manage reintroduction sensitively
The Father makes no secret of the fact that he believes the Mother to be deceptive and manipulative. In a questionnaire provided to the Independent Children’s Lawyer in December 2009[7], the Father says:
I am very concerned that whilst [Ms Hale] is a good mother in terms of structure – sleep patterns, bathing, feeding, clothing, playing with him etc however [Ms Hale] builds a web of lies and deceit – she misrepresents everything and only tells the truth occasionally when it serves her purpose.
[7] Exhibit 3
In his interviews with Mr O, he made a number of derogatory remarks about the Mother. However, he reassured Mr O that he would not make [X] aware of his opinion of the Mother. The Independent Children’s Lawyer submits that the Father is insensitive, has failed to accept responsibility for his own actions, and has shown no restraint when talking about the Mother in interview with Mr O or in oral evidence.
Mr Bell submits that the Father is likely to speak about the Mother in a derogatory manner with [X], which will be damaging for [X].
The Father’s counsel asks the Court to accept the Father’s undertaking to Mr O never to speak of the Mother with [X] in negative terms because he understands how upsetting that would be. Counsel submits that the Father has supported [X]’s relationship with the Mother, by not attempting to contact the Mother since 2006 and during the hearing by withdrawing his application to have [X]’s name changed from Hale to Zamojski. I accept that the Father has demonstrated consistency and restraint during the course of these proceedings. I accept that the Father knows there is a risk that [X] will not want to see him, and that he will be trying to relate to him in a way that encourages [X] to build a relationship with him. On balance, I am satisfied the Father will be sensitive to [X]’s needs if they meet.
THE PRIMARY CONSIDERATIONS
The benefit to the Child of having a meaningful relationship with both parents
It is common ground that [X] has a strong and secure relationship with his Mother.
If [X] is given an opportunity to meet the Father, only time will tell whether he will ever have the opportunity to develop a meaningful relationship with him. As already noted, the Family Consultant points to a number of potential risks to [X]’s well being if a reintroduction occurs. This case requires a balancing of those potential risks against any benefit that may arise to [X] from being reintroduced to the Father.
The need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
“Abuse” is narrowly defined in section 4 of the Family Law Act as sexual abuse or an assault of a child which is an offence under the law. I am not persuaded on the evidence before me that [X] has been the subject of abuse in this case.
A question arises as to whether [X] has been psychologically harmed from exposure to family violence. “Family violence” is defined in section 4 of the Act, as conduct, whether actual or threatened that causes the person to reasonably fear for, or to be apprehensive about, his or her personal wellbeing or safety.
The Mother alleges that the Father consumed alcohol to excess during their relationship, even when on anti-depressant medication. She broadly alleges that when under the influence of alcohol, the Father was violent and abusive towards her, without giving specific details. She says she was frightened of the Father. The Mother’s evidence is silent as to whether the Father was violent or abusive in the presence or hearing of [X]. She says “he would go to the pub and forget to come home”. On one occasion he came home drunk with another woman and ended up sleeping on the floor of the foyer. The Father admits he was a binge drinker, drinking to excess for 2-3 days every two weeks or so, sometimes falling over while drunk. He admits to becoming angry, argumentative and raising his voice towards the Mother at times during those periods, but denies ever physically assaulting the Mother and denies ever being verbally abusive towards the Mother in front of [X]. He says he never drank alcohol while [X] was alone in his care. The Father acknowledges that he was untrustworthy and unpredictable during this period.
While I am unable to make findings as to precisely what occurred during arguments between the parties, I accept the Father’s own evidence that he behaved aggressively when drinking. I also have regard to Mr O’s view that the Father would not remember what he was doing while binge drinking and accept that a tall man, like the Father, behaving aggressively while binge drinking, would have been frightening to the Mother.
The police records[8] disclose two incidents involving the Father. The first in December 1999 when the Father reported a friend assaulting him while the friend was heavily intoxicated. The second on 21 June 2007 when the Father was observed by police to be looking through bins at a railway station removing railway tickets, which the police believed he intended to use for free train travel. As the first incident was prior to his relationship with the Mother, and the second 4 years ago,
I give this evidence limited weight.
[8] Exhibit 4
In December 2005, the police were called by the Mother[9]. The Mother and [X] were living in [C] at the time. The Mother deposes to being worried about her safety when the Father arrived at her [C] home to see [X], without prior notice, a few months after separation. The Mother refused the Father entry, and called police. It is common ground that the Father was calmly sitting across the road from the house and moved on when asked to do so by police. The Mother subsequently moved with [X] from [C]. In April/May 2006, the Mother deposes to the Father appearing unexpectedly at a park in [omitted], close to where she and [X] were then living, and started “yelling at me”. The Mother says she hurried away from the park with [X] and that was the last time she saw the Father. The Father acknowledges sighting the Mother and [X] at the park, but denies any yelling. He says at the time he was scared that the Mother would take steps to prevent him from obtaining residence status in Australia, so he stopped trying to see [X] from that time. I am not satisfied that the Father’s conduct on these occasions constitutes “family violence” as defined.
[9] Annexure B of Father’s affidavit filed on 1 March 2011
In or about September/October 2009, the parties were individually consulting a therapist, Ms H, at Relationships Australia to prepare for [X]’s reintroduction to the Father. The Father apparently went to the [omitted] office of Relationships Australia, rather than the [omitted] Office where the interview was scheduled. The Mother reports her therapist reporting to her that the Father had been angry with a staff member at the [omitted] office about the mix-up. The Father claims that his friend, who accompanied him, expressed her frustration to the staff member, and it was not him. The staff member did not give evidence, so I am unable to make a finding about what happened.
The Father says he has not had an alcoholic drink for over 3 years and regards himself as a recovering alcoholic. He believes his alcoholism can be blamed on his upbringing in an unhappy household where “there was a lot of yelling”, and on the Slovakian culture. He tells Mr O that his Mother has had problems with alcohol abuse. He claims to have completely changed his lifestyle over recent years. He says he follows a Vegan diet, and is involved in the Seventh Day Adventist Church.
While there is no evidence before me to contradict the Father’s claim of sobriety, I am not persuaded the Father always controls his feelings of frustration or anger. The Mother alleges that the Father has behaved aggressively towards her solicitor outside the Courtroom during these proceedings. In particular, in April 2009, when the Mother was seeking an order to allow [X] to accompany her overseas to attend her deceased’s sister’s memorial service, the Mother says that the Father’s solicitor had to tell him to “calm down”. The Father acknowledges smashing a camera on one occasion some time ago when he was frustrated that it would not work and he wanted to take a photo of [X], although the timing of the incident is not clear on the evidence. Given that I observed the Father raising his voice occasionally during cross examination at the hearing, I accept the Mother’s allegation that the Father has not always controlled his anger when under pressure in recent times. However, I also take into account the difficulties the Father has faced over many years in his quest to establish a relationship with his only child.
On the evidence available, I am not persuaded on balance that [X] is at risk of psychological harm as a result of family violence.
THE ADDITIONAL CONSIDERATIONS
[X]’s expressed views and the weight those views should be given
Given his young age, and the circumstances of this case, [X] has not been given the opportunity to express his views to the Consultant about whether or not he wants to meet the Father. The Mother says that she has shown [X] a photograph of the Father and that to date, he has shown no interest in meeting the Father.
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Mr O observes [X] has a secure and loving relationship with the Mother and with Mr L. The Mother describes [X]’s relationship with Mr L as “mutually affectionate and enjoyable”. I accept this evidence.
The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The Father says he understands the fundamental importance of [X]’s relationship with the Mother, and does not seek to interfere in any way with that relationship. However, he expresses very negative views of the Mother to Mr O during interview, and again in evidence at the hearing. As already noted, the Father believes the Mother is manipulative and deceptive, and although he claims to understand the importance of keeping his opinion of the Mother from [X], he is as yet, untested.
Since the time of their separation in May 2005, the Mother has taken steps to ensure that [X] does not have contact with the Father. The Father deposes[10] to being at the airport at the time of the Mother’s and [X]’s departure from Australia at the end of May 2005, when the Mother said to him “Goodbye, have a fine life”. The Father says he understood the Mother to be telling him that she was not returning to Australia. The Mother then spent 4 months in Slovakia and made herself and [X] unavailable to the Father when he followed her to Slovakia 2 days after she left, and spent several months trying to find her. On her return to Australia, the Mother spent a short period living in [C] but moved shortly after the Father located her. The Mother never made an application to a Court to arrange for [X] to see his Father in a safe way. I agree with the Father that the Mother has actively sought to discourage any relationship between himself and [X].
[10] In affidavit of Father filed 27 April 2009
There are other examples of the Mother’s attempts to discredit the Father and sever any prospect of [X] having a relationship with him.
a)On 11 December 2005, the Mother told the police in [C], when the Father was sitting outside her home, that the Father was not [X]’s Father. The Mother deposes to not being sure of [X]’s paternity at that time, but in cross-examination at hearing, concedes that she knew she was lying to the police[11]. She says “I wanted the case closed.”
b)In her affidavit sworn in March 2009, the Mother refers to a violent incident in [C] in September 2005 “whereby [Mr Zamojski] attacked me in [C].”[12] At hearing, the Mother concedes that no such incident occurred, and that she was referring to the December 2005 incident when the Father was sitting outside her home. The police report of that incident states that the Mother did not hold any fears for her safety.
c)The Mother alleges that the Father was sacked from his employment as a [omitted] because he assaulted a disabled teenager in his care. This version of events is disputed by the Father’s former employer[13].
[11] Annexure B of Father’s affidavit filed on 1 March 2011
[12] Affidavit of Mother filed on 27 April 2009
[13] Annexure A to Father’s affidavit filed on 1 March 2011
The Mother says she has made [X] aware that Mr L is not his father. She has told him “your Daddy lives somewhere else…” Mr L confirms that when [X] refers to him as “Dad” or “Daddy” he reminds him that he is not his real father. Mr L says “I’m not your Daddy, but we do Daddy things together”. The Mother says she was prepared for [X] to be reintroduced to the Father in 2009 and [X] was prepared to meet him as long as she accompanied him. She changed her mind when Relationships Australia blocked the reintroduction and has not spoken to [X] about it again. She has decided it will be too stressful for [X] to meet the Father before he is old enough to better understand the circumstances. She does not want to disturb [X]’s happiness and stability with her and Mr L and sees no benefit to a meeting. The Mother has concerns about the Father’s capacity to curb his aggression and believes [X] would be disturbed by conflict and tension if time were to proceed. She says, if [X] is ever curious about the Father in the future, she would facilitate a meeting then.
I accept that the Mother holds a genuine view that [X] would not benefit from meeting the Father now and I accept Mr O’s assessment that the Mother is not malevolent, nor “an alienating parent”. However, I find the Mother is convinced that the Father has no redeeming features and I find that she is unlikely to change her attitude irrespective of any steps the Father takes to change his ways. I find it likely, on the basis of the history of the Mother’s behaviour since separation, that the Mother will never voluntarily make arrangements for [X] to establish a relationship with the Father, even when [X] is older. This is a finding to which I give considerable weight.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This is the crux of this case. [X] enjoys a stable, happy family life with the Mother and Mr L. He is progressing well at school, and is settled in every aspect of his life. As already noted, the question is whether the consequence of spending any time with the Father will be too destabilising for [X] and introduce tension into his young life that he has not hitherto experienced and which could otherwise be avoided.
In Dr S’s view, as at the second half of 2009 an introduction was contra-indicated because of the Mother’s fragile emotional state. Mr O says a serious consideration for the Court is whether the Mother might be precipitated into a chronic state of anxiety if the Court were to order that [X] spend time with the father. If this were to happen, Mr O says [X] would worry about his mother which would impact adversely on him. Mr O is not confident that the Mother has received treatment for post traumatic stress and he was unable to assess whether she will improve over time. In Mr O’s view, the Court should consider, as an option, further deferring any introduction for several years, which would eliminate any risk to [X] of the Mother’s emotional health deteriorating, and would eliminate the risk of [X] growing up with highly conflicted parents. However, Mr O also recommends, as a second option, that the Court give consideration to starting time now because of the benefits to [X] of better understanding his identity and enjoying even a limited relationship with the Father.
I agree with Mr O that it is difficult to imagine that the parties in this case will ever work together in a cooperative manner. Each deeply distrusts the other. I agree with Mr O that [X] is likely to suffer adverse consequences if the Father shares his strongly negative views about the Mother with [X], or the Mother cannot or does not emotionally support [X]’s reintroduction to the Father.
These are matters to which I give considerable weight.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
This factor is not relevant.
The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
No issue arises in relation to the Mother’s parenting skills. The Father describes her to Mr O as a “loving and affectionate mother”[14] and says “I have never had any doubts about her as a mother.” [X] presented to Mr O as securely attached to the Mother and it is not in dispute that [X] is a bright and happy child who is progressing well. Although a question arises as to the Mother’s ability/willingness to foster any kind of relationship between [X] and the Father, I accept that the Mother has otherwise demonstrated the capacity to meet [X]’s needs.
[14] At paragraph 25 of Exhibit 1
The Father’s parenting capacity is largely untested. He claims to have been actively involved in the care of [X] as a baby when the Mother returned to work. The Mother on the other hand, says the Father took no real interest in [X] and she could not rely on the Father to care for him. The Father asserts the accuracy of the Mother’s assessment of him to be “untrustworthy” and given his other admissions about his conduct during that period, I find it likely the Father took only a limited role in [X]’s care to the time of separation.
The Father has a qualification from Czechoslovakia in [omitted] and has spent several years working as a [omitted] until approximately 2005. The Father has also completed various courses since these proceedings commenced which should have given him important insights into parenting, particularly into issues arising after separation. Although inexperienced as a parent, I find it likely the Father has some understanding of child related issues. I accept the Father’s evidence that he has played guitar professionally and is therefore in a good position to introduce [X] to music.
As already noted, a significant question is whether, if [X] were to spend time with the Father, the Father has the capacity to provide for his emotional needs. The Father has been seriously critical of the Mother during these proceedings, both at interview with Mr O and in oral evidence. Mr O records the Father referring to the Mother as a “gypsy witch.” The Father says in evidence that his comment was “stupid” and he regrets it. He claims to have been influenced by a book he had read. However, the Father maintained his strongly held opinion that the Mother has “serious mental problems” alleging that she blames men for her problems and when [X] grows up and has his own will, he expects she will have difficulty managing him. The Father says the Mother “has manipulative, dominant personality so will not allow [X] to have his own will.” He claims that “she discards people when they don’t agree with her.” The Father relies on the notes of the Brighter Futures psychology service[15] which record the Mother saying “all men untrustworthy” “not being open with partner” “over generalisation from past traumatic experience” “fear of [X] being hurt by Mr L” “recent unhelpful talk… Mr L might hurt [X]”.[16] Mr O expressed concern that the Father made such negative comments about the Mother, although found that the Father demonstrated more insight at his second interview with him, as to the destructive impact of expressing negative views to [X] about the Mother. The Father told Mr O that he would never tell [X] bad things about the Mother[17] and denied he would ever behave angrily towards him.[18]
[15] Exhibit 2 – Page A16
[16] Exhibit 2 – Page A17
[17] Exhibit 1 at paragraph 26
[18] Exhibit 1 at paragraph 26
The Father is aware that if [X] is to spend any time with him, he will be restricted to monthly visits for short periods under supervision. I am satisfied that the Father is aware that the arrangements might break down. I find the Father is aware that how arrangements would progress from there would largely depend on his sensitivity to and consideration of [X]’s needs during interactions at the initial meetings. The Father said at hearing that he accepted that [X] might wish to terminate a meeting early, or might reject the idea of seeing him altogether. He said he would not wish to force him to spend time with him. I am satisfied that the Father was sincere when he made these remarks. However, I agree with Mr O’s that it is difficult to predict with any certainty whether the Father would or could sustain such a child-focussed approach over a lengthy period.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
[X] speaks both Czech and English. He has visited Slovakia and communicates by skype with members of the Mother’s family in Slovakia. Whether [X] is reintroduced to the Father or not, I am satisfied he will enjoy the benefits of his Slovakian background.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
During the first 11 months of [X]’s life, the Father was a binge drinker, who on his own evidence, was regularly drunk and at times behaved in an aggressive and irresponsible manner towards the Mother.
Since separation, the Father has been absent from [X]’s life. Although he made some attempts to locate the Mother and [X] so he could spend time with [X], the Father waited until [X] was almost 4 years of age before commencing these proceedings. The Father has not contributed financially to [X]’s care. For the past 3 years, the Father has wanted to be part of [X]’s life and to share his life experience with him. The Father has waited since April 2008 for the Court to determine whether or not [X] will be reintroduced to him. He has paid no child support during that period, despite claiming that he wants to do so. The Father does not want [X] to grow up believing that his father abandoned him. The Father believes he can make a positive contribution to [X]’s life, without unduly disturbing [X]’s settled life with the Mother and his step-father. The Father says that he accepts that Mr L is like a father to [X] and he is happy for him to continue in that role.
I find that until the Father commenced these proceedings in 2008, he demonstrated an extremely poor attitude to his responsibilities as a parent.
The Father deposes to dramatically changing his lifestyle approximately four years ago. He claims to have given up drinking to focus seriously on guitar playing and to establish a relationship with [X]. He says he has been helped by becoming involved in the Restitution Ministry of the Seventh Day Adventist Church. He believes he has matured. The Father has completed a Triple P parenting course, an 8 week Anglicare parenting programme, a course in Anger Management, and a Parenting After Separation course. The Father says he is willing to accept the recommendations of Mr O that [X]’s time with him be limited and initially supervised. He wishes to avoid any conflict with the Mother and says he will not raise issues he knows will upset her. The Father says he will accept whatever decision the Court makes. The report from Anglicare [branch omitted][19] states:
[Mr Zamojski] has shown a keen interest in the material presented in this course and has participated actively in discussions. The course emphasises that maintaining the conflict between two separated parents is the most damaging aspect of the separation for the child. Parents are taught that it is their responsibility to work towards a ‘business like relationship’ with the ex partner, so that each parent can focus on the needs of the children rather than prolonging the conflict with their ex partner. [Mr Zamojski] expressed agreement with the recommendations of the course and his/her desire to follow these guidelines.
[19] Annexure E to Father’s affidavit filed on 1 March 2011
I accept the Father’s evidence that his attitude has changed and that he would like now to have the chance to contribute to [X]’s life in a positive way, though I am highly critical of his failure to meet his financial obligations towards [X].
For her part, the Mother, has taken full responsibility for [X]’s care, and decided after separation that it was in [X]’s best interests for the Father to be excluded from his life. The Mother has provided for [X], without support from the Father, physically, emotionally, intellectually and financially. She has created a stable and loving home for [X].
I give considerable weight to my findings under this factor.
Any family violence or family violence order involving the child or a member of the child's family
I have nothing further to add under this factor.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This is not a factor to which I have regard.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child; and has facilitated, or failed to facilitate, the other parent participating in making decisions about major long-term issues in relation to the child and spending time with the child and communicating with the child; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
I have nothing to add under this factor.
Parental Responsibility
The Father seeks an order for equal shared parental responsibility. The Mother seeks an order for sole parental responsibility.
In this case, the parties have not communicated since separation in any meaningful way. The position has not changed since these proceedings were commenced. The Mother suffers from symptoms of post traumatic stress disorder and a question arises as to how she would be affected by an order providing for [X] to spend time with the Father, even for limited periods under supervision. As already noted, until he commenced these proceedings, I am not satisfied the Father demonstrated a responsible attitude to parenting [X].
Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
(b) Family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
In this case, I am not satisfied that it would be in [X]’s best interests for the parties to have equal shared parental responsibility. If a reintroduction is to occur, [X] will have very limited time with the Father. The Father knows very little about [X], and would not, at least at this time, be in a position to contribute meaningfully to decision-making about him. The parties have a history of no communication since separation. The Mother has made all the necessary decisions relating to [X]’s welfare to date. Mr O formed the view that it is unlikely the parties will ever be in a position to cooperate effectively for [X]’s benefit. In all these circumstances, I am not satisfied an order for equal shared parental responsibility is in [X]’s best interests. The Mother will have sole parental responsibility.
Conclusion
[X], aged 7, is a happy, settled, bright young boy who lives with his Mother and his step father in a stable family environment in which he feels “valued, loved and safe.”[20] He does not know the Father, whom he has not spent any time with or communicated with since he was 11 months of age.
[20] At paragraph 35 of Exhibit 1
In Mr O’s view, the advantages of [X] knowing his Father can be summarised as:
·Every child has a fundamental need to understand his/her identity.
·A child’s need to know each parent is an important need. A child who does not know a parent will know that something is missing.
·As a child gets older, his curiosity will grow. It is important that there is a pathway for contact once a child expresses curiosity about his father.
The Father tells the Court that if [X] is not to see him, he will probably sell his small unit in Sydney and return to the Czech Republic to care for his mother in the final stage of her life. The Father says he does not want to receive information about [X] in those circumstances. I accept that this statement is factual and not calculated to sway the Court by way of an ultimatum.
Mr O says that the importance of [X] knowing his father needs to be weighed against the disruption to his normal life “particularly as [X] has no attachment relationship with, or conscious memory of his father.” Mr O says the Court must consider the potential risks of introducing the Father into [X]’s life, given conflict causes such significant problems in children.
The disadvantages of [X] being reintroduced to the Father can be summarised as:
·There is a risk that [X] may be exposed to the Father’s negative view of the Mother, that she is deceptive and mentally disturbed in some way.
·[X] may be exposed to the Mother’s anxiety which means he might worry about his Mother which would not be healthy for him.
·[X] may be exposed to distrust and conflict between the parties.
·Meeting the Father might start a process that then ends, causing [X] confusion.
·Meeting the Father might disturb [X]’s close stable loving family environment.
This is a particularly difficult decision to make. There are strong factors for and against a reintroduction, and I find it difficult to speculate as to what the consequences are likely to be for [X], whichever decision I make.
In favour of a reintroduction, I am heartened by Mr O’s view that the Mother will do all in her power to support [X] with the reintroduction and to continue to support him, whatever the outcome of the reintroduction. In this regard, I take account of the Mother’s voluntary decision less than 2 years ago, to support the reintroduction and Mr L’s willingness to support the reintroduction. I am encouraged by Mr O’s view that if time is introduced very slowly and for only limited periods, and time then stops, [X] is unlikely to form a bond with the Father and will not suffer a sense of abandonment. I am encouraged by the Father’s undertaking that he will not persist in his efforts to spend time with [X] if [X] chooses not to see him. I am heartened by the Father’s undertaking to be gentle, sensitive and considerate towards [X] if a reintroduction occurs.
Against the reintroduction, Mr O is unable to predict with any certainty whether or not [X]’s reintroduction to the Father would have a negative impact on his wellbeing. I have regard to Mr O’s opinion that for supervised time to work, the Mother would need to support [X]. Whilst Mr O believes the Mother would do all she could to support reintroduction, I have concerns that the Mother would find herself unable to support [X] because of her emotional fragility and that the Father does not fully appreciate the risks to [X] if this should occur.
Mr O says that if time were to start and then stop, [X] could be adversely affected. He would be confused by a message that he was not good enough for his father to spend consistent time with him. If he were older, he would understand better. I have regard to Mr O’s view that if [X] is clearly told why his Father is not available to him, he will not necessarily be adversely affected by his absence. I have concerns that the Father will not contain his negative views of the Mother when he sees [X]. I have concerns that [X] will sense the conflict and distrust between his parents and this will unsettle him.
Mr O says if reintroduction were not to occur now, it is difficult to predict when might be the right time, because it would depend on [X]’s state of development. Mr O says it would be important for [X] to have a pathway for contact with the Father when he decided he wanted it. I find this raises another difficult question as to the risks of waiting. Would a reintroduction necessarily ever take place, if the opportunity were not taken now? On balance, I am not persuaded it would, for these reasons:
a)The Mother sees no merit in [X] knowing the Father. She has a profoundly negative view of the Father. I find it likely that whatever [X]’s age, she will resist any approach by the Father for contact with [X].
b)After separation, the Mother did not take any steps to ensure she could locate the Father if ever she or [X] needed to make contact with him in the future. The Mother preferred the view that the Father was out of hers and [X]’s life. She denied to the police that the Father was [X]’s father when she knew the truth. As earlier noted, she was prepared to give false evidence in her affidavit to give the worst possible impression of the Father’s conduct. The Mother has never changed her attitude to the Father.
c)The Father has said he would not seek any information about [X] if the Court does not permit a reintroduction, and would be likely to return to the Czech Republic. In those circumstances [X] may not be able to locate the Father if he wanted to.
I agree with the Mother’s Solicitor’s submission that the short term benefits to [X] of a reintroduction are limited, given he is young and enjoys a stable family life. While I agree with the submission that there are risks to [X]’s welfare if the reintroduction is ordered, I am not persuaded that the long term benefits of a reintroduction are not significant. As Mr O points out, a child’s need to know each of his parents is a fundamental need. A child needs to understand his identity, who he is and where he comes from. Do the circumstances of this case justify denying [X]’s right to have those needs met? I have determined that they do not. I have decided [X] will be reintroduced to the Father along the limited lines recommended by Mr O in the second option presented to the Court. I urge the Mother to recognise how important this opportunity is for [X]’s long term welfare. In addition, I accept
Mr O’s view that it would be helpful for the Father to know something about [X] before the introduction takes place and will order accordingly. I also accept his view that the Father should not drink any alcohol, given his history of alcoholism and I will order that he be restrained from doing so. I will require the Father to undertake counselling with a psychologist who will have the benefit of Mr O’s report and these Reasons for Judgment. I will also require the Father to sign an undertaking that he will make himself available for 12 consecutive visits. Commencement of time will depend on the Father’s compliance with those two Orders. As a mark of his bona fides, I expect the Father to start meeting his financial obligations towards [X].
There are significant delays in obtaining a place at the [omitted] Contact Centre. The delay will be reduced if the Father pays for the sessions privately which he may choose to do. I anticipate that the Father will start his sessions with a psychologist before his time starts with [X]. I will ask Mr O to manage the initial introduction, and time thereafter will take place at the [omitted] Contact Centre, the closest centre to the Mother’s home. The Independent Children’s Lawyer will remain in the matter, at least until it comes back before me in March 2012. At that time, I will ask Mr O to review [X]’s progress and to report to the Court.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X].
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 30 June 2011
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