B and W and Anor - [2005] FMCAfam 331

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & W & ANOR

[2005] FMCAfam 331

FAMILY LAW – Contact – interim residence – autistic child – interim residence to intervener.

FAMILY LAW – Practice and procedure – obligations of Child Representative to parties.

FAMILY LAW – Practice and procedure – transfer to Family Court of Australia.

Family Law Act 1975 (Cth)
Applicant:	AMB

Respondent:

ACW

Intervener:

File Number:

MLM 1531 of 2004

Judgment of:

Riethmuller FM

Hearing date:

11 May 2005

Delivered at:

Bendigo

Delivered on:

11 May 2005

REPRESENTATION

Counsel for the Applicant:

Mr T.J. Puckey

Solicitors for the Applicant:

Rogers & Every

Counsel for the Respondent:

Appeared on his own behalf

Solicitors for the Respondent:

Nil

Counsel for the Intervener:

Mr D.J. McLeod

Solicitors for the Intervener:

Palmer, Stevens & Rennick

Counsel for the Child Representative:

Mr Combes

Child Representative:

Henaghan McLean

ORDERS

That all extant applications be transferred to the Melbourne Registry of the Family Court of Australia pursuant to Section 34 of the Federal Magistrates Court Act 1999.
That the Child of the relationship SAB live with the Intervenor LM and she be responsible for the Child’s day to day care welfare and development.
That the Mother, AMB have contact with the Child as follows:
(a)For the first 2 weekends in each 3 week cycle from 6 pm Friday until 4pm Sunday commencing Friday 20 May 2005.
(b)By telephone between 6.00 pm and 6.30 pm each Tuesday and Thursday and the Intervenor and Father are to ensure that the Mother has uninterrupted contact in their absence with the Child.
(c)For one half of all School holidays by agree and failing agreement from 6.00 pm on the last day of the School term.
That all contact specified to in paragraphs 3(a) and 3(c) commence and conclude at FC Contact Centre in B and that both parties forthwith do all things and sign all documents necessary to complete the intake procedure at the said Centre.
That the Child Representative comply with the Family Court of Australia Guidelines for Child Representative and in particular file and serve a case plan within 21 days of this date.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001, the Court certifies that it was reasonable for the parties to employ an advocate.
It is directed that the reasons for this decision be transcribed and placed on the Court file and made available to the parties.
THAT pursuant to section 65DA(2) of the Family Law Act 1975 the parties ars 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.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BENDIGO

MLM 1531 of 2004

AMB

Applicant

And

ACW

Respondent

And

Intervener

REASONS FOR JUDGMENT

(Revised from Transcript)

This matter was listed for trial before me today.
The matter is an obviously complex and difficult one. It concerns a child a little over 10 years of age who suffers some degree of disability. The exact nature of his disability is not clear from the material, however, it is apparent from reading the family report that he appears to have been diagnosed as suffering from epilepsy and at least one doctor has formed an opinion that he suffers some degree of autism. He also appears to display sexualised behaviours which would not be appropriate for a child of his age, the report being that he masturbates in bed under his doona and appears to become excited and masturbate when playing video games. It is also said that he becomes excited (and in the context of the report that appears to mean sexually aroused) if he is told that he is going somewhere in the sense of an outing outside the home.
The child clearly is in need of significant support and assistance.
It appears clear to me that in a case involving a child with these types of needs the starting point must necessarily be some detailed and good quality evidence as to his precise needs and his precise impediments. In this regard, if the parents are unable to provide this information in presenting their cases (or in the context of this case the current primary carer of the child), it is appropriate for the children's representative to obtain reports from appropriate professionals.
If the obtaining of those reports is not possible due to funding restrictions upon the child representative, then the appropriate course is for the child representative to have the matter listed before the court so that a member of the court can determine whether or not to have the case proceed in the absence of what appears to be important information, or allow the child representative to withdraw if they are not able to properly fulfil their obligations under the guidelines and their more general requirements to properly represent the best interests of the child.
That, unfortunately, is not the only difficulty that this case presents. The factual matrix includes allegations of substantial and continued violence by the father against the mother, to the extent that the father was imprisoned for a period of time as a result of that violence. The mother says that the impact of it upon her has been so severe that it resulted in her leaving the child with the father some years ago and that it has impinged upon her contact with her child (as a result of her fear). She says that a lack of regularity in contact in recent times has been as a result, at least indirectly, of her difficulties in dealing with the father and his current partner (who appears to be the primary carer of the child).
There has not been an application to the court for the use of a contact centre for handovers for contact, nor has this issue, it seems, been drawn to the attention of the court until the day of the trial. Whether or not the child representative has been aware of this particular difficulty until today is not apparent to me on the material before me, however, I would have expected that had the child representative become aware of this issue it would also have been incumbent upon the child representative to seek to have the matter relisted for some determination about what ought to happen to ensure that the matter proceeded appropriately.
There are significant allegations with respect to drug use by the mother which appears to have been accepted by the mother in her discussions with the family report writer, and discussions with the child where the child has said that he wished that the mother would not smoke marijuana. The mother says that her usage has reduced. It appears that, in the past at least, the father has used various substances to his detriment.
Orders for supervised urine screening of the parents were made by Connolly FM in November 2004. It appears that despite the benefit of these orders the child representative has not taken advantage of them and no urine tests have occurred. There is also reference in the family report to another person, M, who has been involved in this case. There are suggestions by the family report writer that some inquiry be made with respect to M who has been living in the same residence as the mother. It is not clear to me that anything has happened in this regard either.
The child is presently being assessed to determine whether or not he would be eligible to attend KSD School, which I presume would provide a higher level of support for his special needs over and above his day-to-day assistance provided by a worker in the state school that he presently attends. It appears that assessment process (for his eligibility to attend this school) has not yet been completed and there are not presently recommendations before the court in this regard from the appropriate expert. Whilst KSD School is in B, the child is presently living with the intervernor in K, which is some distance away.
There is also the possibility of some support from Disability Support Services. There is no evidence, as yet, before the court as to the extent of the support that may be available, nor the assessment by that department of the extent of the child's needs.
The case also has the added complexity that at least at the time of the family report the intervener, who has been the child's primary carer of late, was expressing a view that she may not continue in that role as a result of difficulties in her relationship with the father. As at today, the intervener says to the court that she would intend to continue in the role of primary carer of the child even if she separated from the father. However, this could result in the child being cared for by a person who is not a parent of the child and not living with a parent.
The family report writer notes obvious hostilities between the mother and the intervener. It is difficult on the limited material to know how much of an issue there is about what the child says and what comments the intervener or father might have made to the child.
All in all, it paints a picture of a case that is not ready to proceed and one in which there are difficult issues about the care of a child with enormous needs. It is also a case that cries out for some evidence about what the child's needs are likely to be into his teenage years given the level of his impairment and his obvious sexualised behaviour (which already appears to be overt and at inappropriate levels at 10 and a half years of age). This must be seen in the context of him presently living in a household with a number of other children. Some assessment needs to be made as to whether or not the intervener, even if one assumes that she is acting with the best motivations and great love for the child, will be able to meet the needs of the other children in her household and the child if his behaviours are likely to become more difficult to manage into the future. No-one has filed any material about this and I suspect the level of consideration of that issue so far has been cursory, if it has been considered at all.
In the circumstances, I am not satisfied that this case (when it does proceed to hearing) is at all likely to take less than three days. I am fortified in that view by the fact that the father is presently unrepresented and there are some issues as between him and the intervener which mean that it is not appropriate for him and the intervener to be jointly represented in these proceedings at this time.
There is an additional benefit in this case of a transfer order to the Family Court in that the case will be able to be the subject of much more intensive case management in order to assist the parties and practitioners to be able to properly prepare the matter for a hearing, which has not so far been achieved.
In these circumstances I propose to order that the matter be transferred to the Family Court.
That then leaves the issue of what ought to happen in the intervening period, which also presents difficulties. There is, in my view, clearly a status quo of the child residing in the household of the father and intervener. On a reading of the material it appears to me that the realities are that the intervener has been the primary carer of the child in recent times and the family report outlines at least some behaviour of the father which is certainly not appropriate with a child of this age and which has not, at least at that time, been able to be arrested or stopped by the intervener. In particular, I refer to page 12 of the family report where the report writer says:
During the process of getting the parties to an appointment the writer was advised by Ms O in January 2005 that Mr W and she had argued and he had left at 11.30 in the evening, taking S with him. She was unaware of his whereabouts and advised the writer that she intended to withdraw from proceedings given the adult relationship had ended. This changed soon after and the parties were understood to have reconciled.
The needs of the child in this case (if he does in fact suffer autism, as appears to be the case), are far greater than a child who does not suffer such an illness. It is well-recognised that children suffering even mild autism have a far greater need for a very significant level of stability, regularity and routine in their lives. It is wholly inappropriate that a child of this age (and suffering this form of difficulty) should be taken at 11.30 in the evening from the house in which he used to living, as a result of an argument.
In the circumstances I must also consider whether or not I should make an interim order altering the residence of S to the mother's household. I am not satisfied that there is a particular risk to S in the intervener's household over and above the risks that he could confront in the mother's household as a result of drug use and her apparent incapacity in meeting his needs. I am concerned that if I leave him in the care (at least by court order) of the father, that the father's conduct could continue. There is also the real possibility that the outcome in this matter at the end of the day could be that S lives with any of the parties, although on a preliminary view it is most likely to be a contest between the mother and the intervener.
Given the child's needs, it is not appropriate to face the possibility that his care arrangements could be substantially changed today only to be changed again in the foreseeable future if the intervener ultimately obtains orders for residence.
I therefore propose to order that the child reside with the intervener rather than the father. I do this on the basis that it will ensure his continued residence in the current environment, but with the added protection that the father will not now have the ability to undertake events such as taking the child at 11.30 at night if he has an argument with the intervener, as the intervener will have the residence order.
This, so far as it is possible, gives the intervener the option of properly protecting the child. Whether or not she can succeed in doing that between now and trial will no doubt be a very significant matter for the court on the next occasion.
I also find that it is appropriate that the child should have regular contact with his mother. In this regard I accept the proposal of the children's representative that the child ought to have contact for two out of each three weekends. Given the difficulties with handovers, I am satisfied it is appropriate that the handover occur at a contact centre, and in this case the only contact centre that would be available is the contact centre at B. This necessarily results in an imposition upon the father and intervener because the contact centre is some distance from where they live, but much closer to where the mother lives. There is little that can be done about the practical reality of the location of the contact centre and the location of the parties.
The use of the contact centre, so far as it is reasonably possible, removes the mother’s concerns as to her safety. It also has the added benefit that there will be a proper record of whom of the parties attends and does not attend at the contact centre, which should put to rest the allegations and counter‑allegations about who it is that is frustrating contact or not attending upon contact, which at least to some extent ought to ease the evidentiary burden that the trial judge will confront in this matter.
In the circumstances I therefore propose to order that contact occur for two weekends out of three, with changeovers to occur at the contact centre at B, provided the contact centre is able to facilitate it. The contact ought to be from as early as is reasonable following school and the travel time on Friday evenings, and probably around 6 pm, through to around 4 pm on Sunday afternoons to allow for time for the contact changeover, the travel and for the child to arrive home sufficiently early to allow the intervener sufficient time to ensure that the child feels that he is back in his routine, to be able to eat and go to bed and be ready for school the next day.
There should be continued telephone contact as recommended by the child representative, which would be each Tuesday and Thursday between 6.00 and 6.30 pm.
The school holiday periods ought to be shared and I will make an order in those terms.
I also propose to make an order that the child representative comply with the Family Court guidelines with respect to the conduct of a child representative so far as is possible, and in particular that the child representative prepare a case plan within 21 days of today's date.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: