Contact Centre terminates parent’s time for poor behaviour
Pillai & Pillai (No.3)  FCCA 128 (28 January 2016)
The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/128.html?stem=0&synonyms=0&query=family%20law
- The father commenced spending supervised time with the children at a contact centre, the (omitted) Relationships Centre, on 2 August 2014. The time was suspended at the father’s request between 20 September and 18 October 2014 and resumed on 8 November of that year.
- On 10 April 2015, after the father had had a total of 13 supervised visits with the children, the contact centre suspended his time due to what was said to be a breach of the centre rules.
- The visits recommenced on 22 August 2015, but on the next occasion, 5 September, the contact centre discontinued the father’s time with the children completely, due to a further alleged breach of the contact centre rules.
- On 14 December 2015 Dr C’s updated Expert Report was released to the parties.
- The final hearing took place on 16 and 17 December 2015. Both parents and Dr C gave oral evidence.
The Court Expert
- The Court Expert, Dr C, prepared three reports, dated 11 December 2012, 2 April 2014 and 12 December 2015.
- In her original report, released to the parties on 11 December 2012, Dr C noted that the mother was “strongly child focused” and had been “diligent with respect to the welfare of the children, most particularly with respect to their complex medical needs”. She was “attentive, responsive and loving towards them”. However, whilst the father clearly loved the children:
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…he appears to be not so much focused on them and their needs as on efforts to undermine the mother. At interview he was preoccupied with giving an account of her failings and he continually conveyed this, and not very subtly, in the presence of the children. He seems lacking in insight regarding the damage that this may do and regarding his own contributions to the problems.”
- Dr C went on to note that the mother did not undermine the father but the father “consistently undermines the authority of the mother and seeks to convey to the children a negative view of her parenting”.
- In her updated Report of 2 April 2014 Dr C noted that the father’s efforts to alienate the children were “somewhat toned down” from the previous occasion they remained apparent and the children were “clearly very disturbed by it”, and there was still a risk of psychological harm to the children. She suggested that:
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Perhaps the only way that this risk can be ameliorated is to ensure that Mr Pillai’s contact with the children is supervised, if not in the long term, at least for long enough to provide the children with some respite from the alienating process and to consolidate their relationship with the mother.
- Dr C went on to recommend that arrangements needed to be made to protect the children from continued exposure to the alienating process. She expressed the view that:
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…the children’s time with their father needs to be limited and there needs to be protection provided to the children so that they do not continue to experience alienation.
- In her most recent report, released on 14 December 2015, Dr C said of the father:
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The reports indicate that the father continues to behave and to make comments in a manner that is undermining or alienating of the children’s relationship with their mother; and this in spite of considerable feedback and some counselling.
- The Doctor recommended that “the children’s time with their father needs to be limited and there needs to be protection provided to them so that they do not continue to experience alienation”.
- In cross-examination by Mr Morris, Dr C said that the children do not appear to be having fun in their time with their father. He is limited in his capacity to have a fun interaction with the children. Whilst it is important for the children to maintain some contact with their father, fortnightly was probably adequate and one hour at a contact centre was probably enough.
- Dr C went on to say that the undermining of the mother by the father had not been as marked as before but it was still there. The presence of a supervisor has not been enough to stop the undermining.
- Dr C said that there would still be a need for supervision, and suggested an agency like Phoenix Rising.
- Disturbingly, it was Dr C’s evidence that she did not think that the father’s personality style was going to change. When asked if supervision of contact should extend for six months, she said that she did not know what would be different after six months. The prospects of altering the father’s character structure were quite limited, although there may be some benefit in his learning about parenting skills.
- There had been a continuous undermining of the mother’s care by the father. Also, there was not much by way of communication between the parties. Dr C said she was not sure if the father was sufficiently attuned to the children to know what they would like to do when they spent time with him. The fact that there has not been a lot of contact with their father has been beneficial for the children.
- In his cross-examination, Mr Lloyd SC, Dr C said that it was more likely than not that the father’s personality would not change. However, she would have confidence in the mother’s ability to know when it would be a good time for supervision of the father’s time with the children to cease.
- Dr C said that the father had very limited insight into his behaviour and how it impacted on the children.
- In cross-examination both by Mr Lloyd and Ms Cantrall, Dr C expressed the view that not seeing their father at all could be negative and may affect the children’s relationship with their mother. She would not like to see a situation where the children’s contact with their father ceased completely. Children of mixed race need some connection with their cultural and racial heritage.
- In answer to a question from the Bench, Dr C said that the father’s reported cutting of the children’s fingernails almost every time he saw them at the contact centre was “obsessive” and “bizarre”.
- In her affidavit of 3 August 2015, the mother expressed concern about the father’s at times unpredictable, irrational and inappropriate behaviour. She deposed that the father’s supervised contact sessions at the (omitted) Children’s Contact Service was suspended from 10 April to 14 June 2015 due to his breaches of the terms and conditions of the contact service. The child X had been “increasingly settled since June 2014”. Y has been “developing well” but expressed that she missed her father.
- In her affidavit of 19 October 2015, the mother provided updating information and deposed that on 8 September 2015, she received an email from the Director of the (omitted) Contact Centre advising that the Centre was discontinuing the contact visits for the children with the father. At a meeting with the Director, Ms H, on 15 September, the mother was told that the father was “fixated on hygiene issues” and directing all his attention to Y, not X. She was also told that the father was continuing to undermine her and alienate her from the children.
- In the final paragraph of her affidavit the mother deposed:
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…I seek that the father’s time with the children be at my discretion. I confirm that I would be happy to engage with the father spending time with the children on a limited basis if he engages in some psychiatric treatment and intervention for a considerable period of time, for example, for 18 months, and he demonstrates an appreciation of the effect his actions have on the children. This time would still need to be supervised service for quite some time before I would be comfortable with the father spending any time alone with the children.
- It was the mother’s evidence in cross-examination that she was seeking the power to have the final say in the arrangements for the children’s contact with their father. She was not willing to entertain the idea of the children having contact with their father for a period of 18 months. The children are vulnerable and need time to “get back on track”.
- The mother expressed the view that X was missing his father. She had to tell the children they were not going to continue going to the contact centre to see their father. She thought that the children felt comfortable with their (nationality omitted) identity and the fact that they identify as (religion omitted).
- The children had not seen their father since 5 September 2015. They had sent him a birthday card and presents on (omitted) and he had sent them a video back.
- In his affidavit of 13 October 2015, the father stated that the Director of the Contact Centre had told him on 10 April 2015 that he was not to write notes to the children or do anything that was secretive. He conceded that he cut the children’s nails on three occasions because they were very long and full of dirt. He confirmed that he had not seen the children since 5 September 2015, after which time the Contact Centre had written to him terminating his contact visits with the children.
- The father was cross-examined. He said that he would be funding the proposed supervision through Axia Solutions Contact Service. He conceded that the mother had been doing “a great job” with the care of the children. The children appeared to him to be adequately clothed, happy and healthy.
- Mr Morris of Counsel submitted that the Independent Children’s Lawyer supported ongoing time for the children with their father in a protected way and did not support the mother’s proposal where she would be allowed a veto on time with the father or a discretion as to when the children would see him. He conceded that two hours per fortnight was too much and suggested a period of one hour for some twelve visits, graduated to further supervised time for a period of up to three hours per fortnight.
- Mr Othen of Counsel, who appeared for the father on the second day, submitted that it was to the children’s advantage to have a relationship with both their parents, referring to section 60B of the Family Law Act 1975 . He said that the father agreed to a program of twelve visits at a contact centre or supervised by Axia Contact Service.
- Senior Counsel for the mother referred the Court to the three reports from Dr C, all of which showed a deliberate process of alienation by the father, which he described as “reprehensible and sinister”.
- Mr Lloyd submitted that the father’s behaviour amounted to family violence, noting the example of “repeated derogatory taunts” in s.4AB(2)(d). Subsection 43(1) of the Act, at paragraph (ca), requires the Court to have regard to:
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the need to ensure protection from family violence;
- Subsection 60B(1) at paragraph (b) states that one of the objects of Part VII of the Act is:
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protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
- Similarly, one of the primary considerations in s.60CC(2) is found at paragraph (b):
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the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
- Mr Lloyd submitted that the presumption of equal shared parental responsibility in s.61DA of the Act does not apply because of the family violence.
- It was submitted that it would be foolish to assume that the father has learnt anything at all about the impact of his behaviour on the children. The father “still doesn’t get it” and “has learnt nothing”. The father “failed miserably” to comply with the earlier orders. He was suspended from the Contact Centre for repeated contraventions of the terms and conditions.
- Mr Lloyd submitted that it was not the case that the mother’s application is for suspension of the father’s time with the children, as a reading of paragraph  of her affidavit of 19 October 2015 makes clear.
- In a short submission in reply, Mr Othen submitted that the father’s behaviour at the contact centre did not come within the definition of family violence in s.4AB(2).
- The short answer to the four issues posed by counsel for the father would appear to be:
- If the children had no relationship with their father at all it would be to their detriment; and
- Equal shared parental responsibility is not in the children’s best interests and the mother should have sole parental responsibility for the children.
- There have been two attempts made to bring about parenting orders in relation to these children, originally on 26 July 2010 and then on 11 June 2014. The orders have not met the children’s needs for a meaningful relationship with both of their parents, due to the failure of the father to refrain from behaviour that undermines the mother’s role as a parent or alienates the children from their mother.
- There have been three Court Expert Reports from Dr C over a period of three years, from December 2012 to December 2015, and the same themes emerge from each report:
- The mother is caring, loving and child focused;
- The father continually undermines and criticises the mother to the children;
- The father lacks insight into the deleterious effect of his behaviour on the children;
- The father appears to be unable to change his behaviour in this regard and Dr C is of the opinion that he will not change his behaviour into the future; and
- The father’s behaviour is psychologically harmful to the children.
- The 2010 Orders provided for the parties to have equal shared parental responsibility for the children. This did not prove to be successful and the Orders I made in June 2014 provided for the mother to have sole parental responsibility for the children. I see no reason to depart from this position. I am not of the view that the father’s continued undermining of the mother’s role amounts to family violence as set in s.4AB(2), but I am nevertheless satisfied that it is not in the best interests of the children for their parents to have equal shared parental responsibility for them due to the father’s intractable behaviour and his lack of insight into the effect of this behaviour on the children.
- The father’s behaviour has been erratic and, in the reported instances of his persistence in giving the children a manicure on a number of occasions when he spent time with them at the contact centre, his behaviour has been characterised by Dr C as bizarre and obsessive.
- The parents’ communication is poor and, if anything, seems to have deteriorated in the past year or more.
- The Independent Children’s Lawyer has submitted that the mother should have sole parental responsibility for the children and I agree with that submission. I will order accordingly.
- That leads to the question of the amount of time that the father should spend with the children and the circumstances in which he should do so. Dr C’s concern in her report of 2 April 2014 was that the only way that the risk of psychological harm to the children could be ameliorated was to ensure that the father’s contact with the children was supervised, at least for long enough to provide the children with some respite from the alienating process and to consolidate their relationship with the mother.
- As can be seen, however, the supervision at the contact centre did not achieve this result. The father continued to behave in this way, which led to the contact centre at first suspending the arrangements and then terminating them.
- However, the Independent Children’s Lawyer and the father each propose an arrangement whereby the children spend time with the father, albeit for only an hour at a time instead of the previous two hours, under supervision at a contact centre.
- I have a serious doubt that this is a viable proposal. The father has worn out his welcome at the contact centre at (omitted) and, from paragraph  of the mother’s affidavit of 3 August 2015, it would appear unlikely that (omitted) Contact Service, or any other service, would be willing to offer supervision to someone whose contact had been terminated by another centre.
- If there is to be any supervised time with the children in the near future it would need to be under the supervision of an agency such as Axia Solutions or Phoenix Rising.
- I am certainly of the view that unsupervised time between the father and the children is not viable at this time and it is unlikely to be a viable proposition for a considerable period of time to come. This view is based on the evidence of Dr C about the father’s continuing lack of insight into his behaviour and her pessimism about the likelihood of any change in his behaviour in the immediate future.
- The Independent Children’s Lawyer has proposed that the father’s time with the children, under supervision, should be for twelve consecutive fortnightly visits of one hour at a time. This proposal is clearly based on the opinion expressed by Dr C that one hour was probably enough. I cannot see any evidence that would satisfy me that after twelve such visits of one hour at a time then supervised time could safely be increased to a period of up to three hours, let alone unsupervised .
- I am not of the view that there should be no contact between the children and their father. Dr C has expressed the opinion that this would not be to the children’s benefit, and I accept that view. The evidence seems to be that the children at times miss their father but their behaviour seems to have settled since they have not been spending time with him.
- This does not mean that the mother’s proposal should be accepted in its entirety, or at all. The best interests of the children are the paramount consideration.
- There should be some regular communication between the children and their father, which should include supervised face to face contact. The time should be limited to an hour, as Dr C suggests. I am not persuaded that a fortnightly arrangement is viable at this time and it appears that the time should initially be limited to special days such as birthdays and Father’s Day. Supervision can be by means of an agency such as Axia Solutions or Phoenix Rising, at the father’s expense.
- Any additional time will be as agreed between the parents.
- There will be a Watch List Order, which need not be in place until the children become adults but should be in place for the next three years.
- I will order accordingly.