Time and Parental anxiety – Danell & Saller (No 2) [2015]

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1072.html

“BACKGROUND

1. The substantive application in this matter is listed for final hearing in respect of parenting and property matters for five days commencing on 23 May 2016.
2. This matter concerns an interim application filed by the mother on 16 October 2015 seeking to suspend the time that the children, B born in 2007, and C born in 2010, (“the children”) spend with the father.
3. Interim parenting orders were initially made by Le Poer Trench J on 25 February 2015 and provided for the children to spend supervised time with the father each Wednesday and Friday for up to three hours, commencing at 4:30 pm, and on each Saturday and Sunday for four hours, commencing at 11.00 am (hereafter referred to as “the contact visits”). The orders were subsequently varied by his Honour following an application by the father to spend unsupervised overnight time with the children.
4. The mother seeks to suspend the time the children spend with the father as result of a number of incidents that have occurred during the contact visits. A concern has also been raised in respect to a changeover where it was alleged that the father failed to comply with agreed protocols to maintain separation between the parties.
5. As a result of the events that have occurred, the mother alleges that the children are at risk in the father’s care. Further, the mother alleges that, as result of the mother’s experiences during the course of her relationship with the father, she suffers ongoing anxiety. In that context, the mother says that her level of anxiety has been elevated as a result of the incidents that have occurred during the course of the contact visits. This, she alleges, has impacted upon her parenting ability which, it was submitted, presents a risk to the children.
6. The mother’s application was opposed by the father. The Independent Children’s Lawyer (“the ICL”) proposed a small reduction in time that the children spend with the father. The ICL argued that a reduction in the children’s time with the father is appropriate in order to ease a degree of pressure that is currently placed upon the children, the parties and the staff of Supervised Contact Services (hereafter referred to as “J Org”), which is a service currently providing supervision of the father’s time with the children.
7. The Court has found merit in the submissions of the ICL and the orders that have been made are substantially in accordance with those which were proposed by the ICL.

SUBMISSIONS ON THE BEHALF OF THE MOTHER

22. The mother’s argument that the children are at risk of physical or psychological harm as a result of the current arrangements for the children to spend time with the father was essentially two pronged:
    • First, it was argued that, as result of trauma that she has suffered during the course of her relationship with the father, the mother suffers anxiety which has been aggravated by the events that have occurred during the contact visits between the children and the father. This anxiety, it was argued, has impacted and potentially will impact upon the mother’s parenting capacity which in turn presents a risk to the children.
    • Second, it was argued that the father’s conduct during the course of the contact visits with the children demonstrates inappropriately sexualised behaviour and lack of restraint which, in itself, poses a risk to the children.
23. In respect to the issue of the mother’s anxiety, counsel for the mother argued that the mother’s attitude to the children spending time with the father needs to be seen through the prism of her relationship with the father. That relationship, it was submitted, was characterised by significant family violence, non-consensual sex, control, intimidation and belittling behaviour.
24. Counsel for the mother relied upon what was submitted to be objective evidence of the father’s abuse of the mother. This evidence included an SMS message sent by the father to the mother’s sister, Ms CC, on 4 February 2015, which read:

[Ms Danell] will understand that I have been calling her crazy for so long. But that is incorrect, as it is I who has been crazy.^[25]

25. It was submitted that the acknowledgment, contained in the SMS message, confirms the mother’s allegation that during the course of the relationship the father frequently referred to her as “psycho”.^[26]
26. Reference was also made to a further SMS sent by the father on 14 February 2015 to Ms CC, which stated:

I have been reading up on domestic violence and it has made me realise that I have crossed the line – and been abusive to [Ms Danell], made her scared of me and made her feel that she cannot be herself.^[27]

27. In summary on this point, counsel for the mother submitted that the mother’s anxiety is a by-product of the way she has been treated during the course of her relationship with the father. That anxiety, it was argued, has now been exacerbated by the events that have occurred during the father’s contact visits with the children.
28. It was submitted that the clinical notes produced by the W Region Area Health Service and DD provide objective evidence in support of the existence of the mother’s anxiety.
29. In respect to the second limb of the mother’s argument, counsel for the mother submitted that the father’s behaviour during the supervised visits, as reported in the contact notes, showed objective evidence of inappropriately sexualised conduct and a lack of appropriate restraint on the behalf of the father.
30. Counsel for the mother submitted that many of the examples set out in the above chronology “defy common sense” and are almost designed to be “mischievous”. It was submitted that, while the strict conditions that had been placed on the father’s time with the children may have caused a level of frustration for the father, common sense would suggest that a reasonable person in such a situation would adjust their conduct to the context of the requirements that are in place. Counsel for the mother submitted that, as result of the father failing to comply with those conditions, the mother has a real concern as to whether the father will comply with any court orders.
31. In the context of the father failing to comply with the conditions of supervision, it was submitted that it is necessary to examine how the father reacted to the cautions he received about his conduct. In that respect reference was made to paragraphs 34 and 35 of the father’s affidavit filed 27 October 2015 where the father said:

34. On Sunday, 27 September 2015 I was driving to contact at approximately 9.43 am. I was driving to the changeover point via [GG Street]. Although I acknowledge I entered the agreement with J Org not to drive to the changeover point on [GG Street], however I just wasn’t thinking at the time. I saw the Mother’s vehicle pass mine in the opposite direction.

35. I called [Ms FF] soon afterwards and advised her that I have accidently driven on [GG Street] and just passed the Mother’s car. In the conversation with [Ms FF], she stated that contact may be cancelled. I concede I responded by saying “Fuck off”. This wasn’t meant in an offensive manner to [Ms FF], but as an expression of how exacerbated I was that a mistake of using the wrong road to drive to the changeover point could cause my time with the children to be suspended.

32. Counsel for the mother argued that the father’s affidavit material was “replete with concessions and admissions that he did the wrong thing”. However, the sincerity of those concessions and admissions was questioned in circumstances were the father continued to breach the conditions of the supervision. Further, it was submitted that it is necessary to examine how the father responds to being criticised in respect to his behaviour. In that respect reference was made to the father sending thirty-three text messages and making three telephone calls to the J Org supervisor, on 27 September 2015, after he was advised that his time with the children had been cancelled as a result of his response to the supervisor.^[28]
33. It was submitted by counsel for the mother that, in order to make the contact visits viable and preserve the prospect of the father having a relationship with the children, it is necessary for the Court to suspend the existing orders. It was further submitted that suspending the current orders would provide the Court and the parties, with an opportunity to assess the father’s conduct and to obtain proper evidence regarding the father’s mental health. It was also submitted that there is evidence of stress on the children by certain events that have occurred during the visits.

SUBMISSIONS ON THE BEHALF OF THE FATHER

34. Counsel for the father submitted that, while the mother argued that her anxiety needed to be seen in the prism of life experience, it was equally the case that some of the events that the mother complained of appeared to be “quite silly and trivial”. It was further submitted that there was no evidence to challenge Dr R’s assessment, set out in her Single Expert Report, that the father is a devoted father.
35. It was submitted that while the father has engaged in some inappropriate behaviour, where that had occurred, the father had acknowledged the behaviour as being inappropriate.
36. It was further acknowledged that there had, at times, been instances where the father had demonstrated some degree of lack of control. Those instances, it was argued, reflected the father’s frustration with the rules and conditions that apply to the supervision of his time with the children.
37. Counsel for the father acknowledged that the other incidents in respect to which the mother expressed concern might be seen as being “slightly quirky.” However, it was submitted that those instances, which included licking chocolate off a child’s face and fingers, were to be regarded as more of a sign of parental affection rather than anything more sinister. Moreover it was argued that the behaviour was consistent with that engaged in by both parents when the family was intact.
38. It was further acknowledged that some incidents had occurred which were in the category of technical breaches of the rules and conditions of the supervision provided by J Org. These breaches, it was argued, were “momentary technical breaches” and the Court should be focused on what is in the best interests of the children rather than mere technicalities.
39. Counsel for the father argued that the mother’s complaints regarding the father’s conduct were being overstated. As evidence of that, counsel for the father referred to the report of the F Town Police in respect to the mother’s complaint of 30 September 2015. Relevant extracts from that report are as follows:

The victim attended the [F Town] police station on Wednesday 30 September 2015. She wanted to report that she was being constantly stalked and harassed by her ex-partner. … On this occasion she presented a five page typed document which she stated was a contemporaneous record she had kept to document the incidents….

The main crux of the stalking complaint centres around two claims: that the victim has often seen [the father’s] vehicle in her street at a time when she believes it shouldn’t be there; and the [father] shows up at the McDonald’s in [Suburb M] where the custody changeover takes place, outside the 15 minute window the Court Orders apparently specify. The victim feels this is intimidating.

…In regards to the typed document presented by the victim, at the conclusion of reading it Police stated that there was insufficient evidence to to establish stalking based on the information contained within the document. Upon being told this, the victim’s demeanour changed. She became emotional, aggressive and unreasonable. She demanded to know exactly why there was insufficient evidence and what would be sufficient evidence to proceed. Police took her through some of the statements made in the evidentiary document she had prepared … The victim immediately amended her version, repeating back verbatim what Police had just explained to her. She now maintained the new information, which she had just been informed would constitute the offence of stalking, was in fact the true version (and not the contemporaneous notes she had made shortly after the incident). She demanded to make another statement in which this version was to be presented.^[29]

40. It was submitted by counsel for the father that, if the mother’s application was successful, it would result in the father effectively having no relationship with the children in circumstances where he has had a close and loving relationship with the children and has been a very important part of their lives.
41. It was submitted that J Org’s actions in suspending the father’s time were as a result of:
    • on one occasion, an example of the father being in the wrong street at the wrong time; and
    • on another occasion, in circumstances where the child had followed the father out of the gate of a children’s party.
42. It was submitted that the children have spent hours in supervised contact with the father and there is no evidence of the father being any risk to the children. It was argued that there is, however, a risk to the children if their relationship with the father is detrimentally affected by depriving them of the opportunity of spending time with him.
43. In respect to the J Org contact notes generally, it was submitted that the mother’s complaints had been selectively extracted. It was noted that many of the reports conclude with statements from the J Org supervisor to the effect that, while there have been some technical breaches, things were generally working well.
44. Finally, counsel for the father referred to the emails from J Org to the parties lawyers, dated 27 October 2015, confirming that J Org is prepared to continue supervising the father’s time with the children. That willingness, it was submitted, would not exist if J Org had any genuine concerns about the father presenting a risk to the children.
45. Counsel for the father opposed the mother being given sole parental responsibility.
46. The father also sought orders requiring the mother to provide him with information regarding the children’s medical treatment and preventing the children being taken to a dentist, doctor or psychologists without the father’s consent.

SUBMISSIONS BY THE INDEPENDENT CHILDREN’S LAWYER

47. The ICL opposed the mother’s application to suspend the father’s time with the children. The ICL argued that the mother had not provided details of the risk that she alleges the children are subject to. In particular, the ICL questioned whether the alleged risk is sexual, physical, psychological or all of the above or, on the other hand, whether it is the mother’s attitude and capacity to cope with the father spending time with the children.
48. It was submitted by the ICL that, at this stage in the proceedings, there is simply no evidence available for the Court to find the existence of a risk, in respect to any of those categories.
49. While the ICL acknowledged that the nature and extent of the mother’s anxiety may be an issue to be determined at final hearing, she submitted there was no evidence presently before the Court regarding the extent of the mother’s anxiety and whether that anxiety impacts upon, or would potentially impact upon, the mother’s parenting capacity.
50. The ICL submitted that, in so far as the mother relied on extracts from the J Org contact notes, it is necessary to refer to those notes in their totality. For instance, in respect to the children’s time with the father on 22 September 2015, where the J Org notes reported that “the father commented to [C] to the effect that he ‘loved her boobies’”, the ICL submitted that the overall report concluded that the contact visit was “a really positive visit for the girls emotionally.”
51. Further, it was submitted that the mother’s complaints regarding the father’s inappropriate conduct more generally, needed to be tested through the process of cross examination at final hearing. It was submitted that, on the basis of the evidence available in the interim proceedings, it would be unsafe for the Court to conclude that the children spending time with the father presents an unacceptable risk to them.
52. The ICL stated that the weight of evidence is that the children enjoyed spending time with the father who has very much been a part of their lives. Other than for a period of approximately three weeks immediately after the parties separated in January 2015, the period from 13 October 2015 to date is the longest period of time the children have been away from their father. The ICL also argued that it is of note that the mother had consented to the children spending time with the father very shortly after the parties separated.
53. Reference was made to the Single Expert Report of Dr R which stated that the children have a close and loving relationship with the father. Dr R’s conclusion was, it was submitted, consistent with the email from J Org to the parties’ lawyers dated 27 October 2015, where it was stated: “There is no doubt that the children do enjoy time with their Father, and that he makes an effort to plan their visits to maximise time to ensure the children have a good time.”^[30]
54. Reference was also made to the fact that J Org were prepared to continue supervising the children’s time with the father.
55. The ICL submitted, however, that it would be appropriate for the parties to agree with J Org as to the nature of the activities that the children engage in during the contact visits. In that respect the ICL referred to the email from J Org dated 9 November 2015.^[31]
56. In terms of issues that have arisen between the parties, and in the context of the email from J Org dated 9 November 2015, the ICL submitted that it was appropriate to reduce the time the children spend with the father by removing the Saturday contact provided for in the current orders because there is evidence that the current arrangements are onerous for the parties, the J Org supervisor and the children.
57. In summary, it was submitted that, if supervised contact is to be sustainable, it needs to be changed to relieve some of the pressure that currently exists on all parties.
58. The ICL submitted that it would be inappropriate, in these interim proceedings, for the Court to apply the presumption of equal shared parental responsibility and noted, in that respect, that there are no pressing issues, such as schooling, that need to be decided in the next few months.

CONCLUSION

95. In these proceedings the Court has focused on events that have occurred subsequent to the orders of Le Poer Trench J, which were made on 22 May 2015.
96. Some of the concerns raised by the mother that have given rise to this application give cause for further inquiry and ultimate determination at final hearing. However, the Court has not, in these interim proceedings, been presented with evidence that justifies suspending the supervised time that the children currently spend with their father.
97. The Court accepts that, in the circumstances outlined, it is in the bests interests of the children for the time they are currently spending with their father be reduced by eliminating the Saturday visits from the current arrangements.
98. The Court has had regard to the mother’s anxiety and recognises that it is a significant issue to be considered at final hearing. The Court is satisfied, however, that the current arrangements in place for supervised contact visits are such that the children will not be exposed to physical or psychological risk as a result of the time that they spend with their father.
99. In these interim proceedings there has been no expert evidence presented that indicates the mother’s anxiety has impacted upon her parenting capacity. The Court will give appropriate consideration to any such evidence, if and when it is available.
100. It is important that all parties recognise that section 60B(2) is expressed in terms of the right of children to have a relationship with both parents. Clearly, that right is subject to the overriding consideration of ensuring the children’s physical and psychological well-being. Provided that appropriate steps can be put in place to militate against any such risk, every reasonable endeavour should be made to facilitate the children exercising their right. The Court has adopted that approach in making the orders set out at the commencement of this judgment.”