Ball & Ball (No 2)
[2023] FedCFamC1F 752
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ball & Ball (No 2) [2023] FedCFamC1F 752
File number(s): NCC 34 of 2022 Judgment of: SMITH J Date of judgment: 21 August 2023 Catchwords: FAMILY LAW – CHILDREN – Interim hearing - Spend time with mother – Time supervised by supervision contact centre – Current orders for child to spend time with mother twice a week – Mother facing criminal charges re child exploitation material – Issues with afternoon time - Orders varied for supervised contact one day per week – Who can supervise the access – ICL proposes maternal grandmother if paid supervision unavailable or unaffordable - Consideration of B & B limitations on family members supervising – The maternal grandmother can supervise where the contact centre is unavailable or unaffordable –Supervision locations - Parties to equally share supervision costs Legislation: Family Law Act 1975 (Cth) Pt VII ss 60CA, 60CC, 64B, 65D, 65AA, 69ZL Cases cited: B & B (1993) FLC 92-357; [1993] FamCA 143
Ball & Ball [2022] FedCFamC1F 1068
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 21 August 2023 Place: Newcastle Counsel for the Applicant: Mr Priestley Solicitor for the Applicant: Byrnes Lawyers Counsel for the Respondent: Mr Graham Solicitor for the Respondent: Tony Cox Lawyers Solicitor for the Independent Children's Lawyer: McGregor Family Law ORDERS
NCC 34 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BALL
Applicant
AND: MR BALL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
21 AUGUST 2023
THE COURT ORDERS THAT:
1.The matter be listed on 3 May 2024 at 9:30 am for mention by Microsoft Teams.
Discharge Orders
2.That Order 1 of the Orders dated 27 July 2022 and Order 1 of the Orders dated 7 October 2023 in respect of the child Z born 2012 be discharged.
Time with the Mother
3.That Z spend time with the Mother, Ms Ball born 1974, each Saturday from 2pm until 6pm.
4.Ms E (Date of birth 1947) (the Maternal Grandmother) may be present during any time that Z spends with the Mother regardless of who is supervising.
5.No other maternal family member shall be present unless agreed in writing by the parties.
Supervision by B Services
6.The time that Z spends with the Mother shall be supervised by B Services.
7.The Mother and the Father shall be equally responsible for the costs of B Services and a copy of these orders may be given to B Services.
8.The time that Z shall spend with his Mother supervised by B Services may occur at the following locations:
(i)The Mother’s home.
(ii)The Maternal Grandmother’s home.
(iii)Any restaurant, café or fast food venue within Region F.
(iv)Any oval, park or nature reserve within Region F.
(v)The offices of B Services.
Supervision by Maternal Grandmother
9.Within fourteen days of the date of these Orders the Maternal Grandmother is to prepare, execute and forward to the Independent Children’s Lawyer file an Undertakings as to supervision in a form suitable to the Independent Children’s Lawyer.
10.If the Independent Children’s Lawyer consents the Maternal Grandmother may file that executed Undertaking with the Court.
11.Conditional on the Maternal Grandmother having filed that Undertaking with the consent of the Independent Children’s Lawyer, and then only in the event either that B Services is unavailable to supervise or that the Mother and Mr Ball, born 1972, (the Father) (jointly “the parties”) agree in writing, then the time that Z spends with the Mother shall be supervised by the Maternal Grandmother.
12.The time that Z shall spend with the Mother supervised by the Maternal Grandmother shall occur only at the following locations;
(i)Any restaurant, café or fast food venue within Region F.
(ii)Any oval, park or nature reserve within Region F.
No time if neither supervisor available
13.Should B Services and the Maternal Grandmother both be unavailable to provide supervision on a Saturday then Z shall not spend time with the Mother that Saturday.
Change over location regardless of supervisor
14.Regardless of the supervisor, the changeover location for the purpose of Order 2 shall be the carpark at the back of the B Services offices in H Street, Town C unless otherwise agreed in writing between the parties beforehand.
ICL Liberty to apply
15.The ICL has liberty to apply to relist the matter if any issues arise
No order as to costs
16.There is no order as to costs as between the parties.
AND THE COURT NOTES:
A.The matter has been given a listing in May 2024. If the criminal proceedings are resolved prior to that date, the ICL and or parties should notify the Court for the purpose of mentioning the proceedings to determine the further conduct.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ball & Ball has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short form oral reasons for decision, pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”) in an interim application for parenting orders filed by the applicant mother, Ms Ball, on 7 July 2023, in relation to Z, born 2012, now almost 11; who is one of the children the subject of these proceedings.
The application seeks to vary interim orders made by me on 21 December 2022, see Ball & Ball [2022] FedCFamC1F 1068 which decision and orders vary prior orders of 27 July, 7 September and 7 October 2022, which orders otherwise remain extant.
The relevant background is set out in that earlier decision and will not be repeated. This decision is supplemental to, and should be read together with, that decision. In short terms, the mother has been charged regarding child exploitation material in relation to her children. She is defending the charges and the matter is listed for judge alone trial in the District Court of New South Wales in early 2024.
It was common ground that the backlog of criminal trials, which resulted from COVID-19 and its impact upon jury trials, has been assiduously reduced by the judges of the District Court and that there are good prospects that the final hearing will be reached. The orders that I am being asked to make are, therefore, in relation, hopefully, to only the next five to six months.
In early 2023 after my decision, the charges were certified by the Office of the Department of Public Prosecutions and the matter listed for trial. Despite the emphasis placed on that certification during submissions it is not relevant. My assessment of risk on the last occasion, which led to the order for supervised time, was based on there being extant charges of child sex abuse.
The current orders provide for Z to spend supervised time with his mother twice a week. These times occurred on Wednesday after school, and on Saturday afternoons. The time is being supervised by B Services, a professional contact supervision service. The locations of the visits have been subject to what B Services could accommodate. Generally it has been, as I understand it, their offices or the local park.
I was informed that the mother has been paying the entire weekly fee, of in excess of $800. This is, apparently, because when I noted the variation in service providers to B Services as requested on the last occasion, I did not specifically repeat the prior order that the parties share equally in the fees. The parties, apparently, therefore worked on the basis that the mother was solely liable. I must say, that is a matter of some concern to me, given the way I read the orders and what I thought my clear intention was. But nevertheless, that is what has been occurring.
The simple issue is that Z has not spent time with the mother on about fifteen of the Wednesday afternoons he should have. That started in about May of this year and has continued through to present. He also missed one Saturday, but that does not appear to be a major issue at the moment, and hopefully will not become one. It is clear the current Wednesday order is not working. The mother, the father and the Independent Children’s Lawyer (“ICL”) all propose somewhat different variations to the orders. There is, therefore, no Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) taken. The orders are not working and something needs to be done in Z’s interests.
As I said during oral submissions, I have not seen the alleged child exploitation material and have no view on the charges. The mother may be guilty of a serious offence and facing incarceration. She may be entirely innocent and the subject of a grave injustice. I must make the orders that are in Z’s best interests, taking into account the fact that there are serious allegations. It is common ground, without admissions or prejudice to the mother, that the nature of those allegations mean that ongoing supervision is required until the issue is determined. It is also common ground that it is in Z’s best interests to maintain his meaningful relationship with the mother, at least until the determination of the criminal charges is made.
The mother is distraught and has concerns that Z is not attending Wednesday evenings due to a failure on the part of the father to support the relationship. In an interim hearing, no findings can been made about that. The ICL has spoken to Z and, apparently, on 25 July 2023, Z told her that Wednesday visits were difficult as it was tiring to go to the B Services offices after school and there was nothing to do there. The mother’s evidence, in effect, supports what Z has said. She says the current supervision by B Services is restrictive and boring for Z, particularly on the Wednesday. The father does not necessarily accept this.
It seems entirely reasonable to me that an 11 year old would be bored sitting around a supervision centre and would, indeed, rather play with his friends and watch soccer games after school. To the extent to which the mother was suggesting that perhaps the father was influencing Z, it seems to me that both what the ICL says and what the mother says go against that. Z’s conduct seems unfortunate but age-appropriate or age-consistent.
The real question is what is the solution? In summary, as the ICL points out, the mother seeks to vary the orders of 27 July and 7 October. She wants specific times: from 4.00 pm till 7.00 pm each Wednesday, and from 2.00 pm to 7.00 pm each Saturday. The mother wants to vary the order for a professional supervisor to allow the maternal grandmother to supervise the time.
That obviously raises issues in relation to what was said by the Full Court in B & B (1993) FLC 92-357 (“B & B”), which I will come to in a moment. The mother also wants to allow time to occur in various locations, including her home, the maternal grandmother’s home, a recreational centre, beaches, and other places. The father seeks that the existing orders be varied to allow the time on the Saturday only and deposes the maternal grandmother being allowed to supervise, basically for the reasons set out in B & B.
The ICL had a more nuanced position in between the parties. Having considered the views of Z and taking into account his age and maturity, she felt that it would be counter-productive to require him to continue attending on the Wednesday, when he doesn’t want to. And, of course, he has reached an age where his views must be given some weight and also, unfortunately, that age where, if his views are not given some weight, he may not only not attend on the Wednesday, he may start to resist the Saturday as well, and that is a matter of concern to me.
To the extent to which the father wants the Wednesday night order removed, the ICL supports the father’s position. In relation to the maternal grandmother, the ICL’s position is that B Services should continue to supervise, but noting the cost and issues about capacity to pay, the ICL submitted that I must balance the risks to Z that the mother will do something or say something inappropriate, in the context of allegations made with the risk that if time does not occur due to cost it may impact upon the relationship with the mother.
The ICL has submitted that the primary position should be supervision by B Services. B Services apparently take the view that they will only allow supervision to occur in places agreed by both parties which, in this case, is unlikely to be anywhere given the parties do not like to agree on anything. However, I am informed B Services will accept places which the Court orders, which provides some latitude.
Those are the basic propositions. As I have said, the critical questions are, what is in Z’s best interests, how do we maintain a meaningful relationship for the next five to six months; and whether the maternal grandmother should be allowed to supervise.
Both parties and the ICL are seeking parenting orders as defined in Part VII, Division 5, section 64B; I note the Court’s powers at section 65D; the paramount consideration, of course, is what is in Z’s best interest see sections 60CA and 65AA; obviously, the primary consideration under section 60CC is the need to protect Z from physical or psychological harm from being subjected or exposed to abuse, neglect, or family violence and the second but also significant issue is the benefit to Z of maintaining a meaningful relationship with both of his parents, in this context particularly the mother. Obviously, greater weight goes to protection which is why there has to be supervision.
I note what was said in B & B:[1]
3. Who should supervise the access?
Both social science literature and experience demonstrate that it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists. (See, for example, Beverly James and Claudia Gibson, “Supervising Visits between Parent and Child”, Family and Conciliation Courts Review, Volume 29 No. 1 January 1991, 73; William F Hodges, Interventions for Children of Divorce: Custody, Access and Psychotherapy (2nd ed) 1991; Wyatt and Powell, Lasting Effects of Child Sexual Abuse (1988); and Patton, Family Sexual Abuse: Front Line Research and Evaluation (1991).) Family and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children’s behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.
For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.
[1] B & B (1993) FLC 92-357 at 79,780–79,781.
Of some concern the maternal grandmother does not believe anything happened but said she will give an appropriate undertaking in the form required by the Court or the ICL.
As I have said, the ICL accepts that “generally” and “in most cases”, that it would not be appropriate to have the maternal grandmother as the supervisor, however, makes a submission, that where Z is not a witness, and where he has the sufficient age and maturity to have a self‑protective capacity, will almost certainly tell the father if anything untoward occurs, and where the circumstance for the maternal grandmother supervising would only be if B Services cannot supervise, and where the ICL suggested the maternal grandmother be present when B Services do supervise so she can observe what a supervisor is required to do, and also noting the Family Report suggested time with maternal grandmother, the ICL’s submission was that this would be one of those cases where the Court should exercise a discretion, noting the Full Court’s use of the words “generally” and “in most cases” requires a trial judge to consider, weigh and balance the unique factors in each case.
It is only months to the criminal trial. At 11 years of age, Z clearly does not want to go on Wednesday night. There is a risk that forcing him to attend on the Wednesday may be counterproductive and so may impair the relationship. You do run the risk with children in this age group that making him go on the Wednesday may make him decide he is not going at all, and so interfere with the Saturday, which would be a terrible result all round. Also, there is a meaningful relationship with the mother and one day a week at his age is sufficient to maintain it for some months.
On balance in those circumstances, I am satisfied that Z’s best interests are served by varying the orders that there is no Wednesday time. I am satisfied that 2.00 pm to 6.00 pm on a Saturday is sufficient to maintain the meaningful relationship.
I am satisfied that, prima facie, it should be supervised by B Services. I am also comfortably satisfied, noting the only evidence of financial issues I had was from the bar table, and that I was surprised that the parties interpreted the orders as requiring the mother to pay the entire cost of supervision by herself, noting this is about what is good for Z, and so I am going to clearly order that each party be equally liable for the B Services fees.
Whilst I am usually very reluctant to allow a relative to supervise, for the reasons set out in B & B which binds me, I am persuaded by the ICL’s submissions that if B Services were unavailable, or if, for cost reasons, the parties, being mutually liable for costs agree it is preferable than each paying; that this is one of those cases where, if B Services are unavailable, the risk to Z of losing the relationship outweighs the risk to Z allowing the maternal grandmother to supervise, taking into account the nature of the allegations, his age, his self‑protective capacity and that he is not a witness.
A further issue, as I said, is around the locations B Services can and will supervise, where time should occur so Z does not find it boring and potentially counterproductive to the goal of maintaining a meaningful relationship.
B Services will apparently supervise anywhere the parties agree, and they will not agree on anywhere, or where the Court agrees is appropriate. The mother has raised a series of places, such as a recreational venue and beaches. The father is concerned that recreational venues do not allow proper supervision because they are noisy, and beaches for other reasons, I presume.
The ICL proposed what seems to be a sensible middle ground of options. I am satisfied that those are appropriate places and will make orders as proposed by the ICL.
In terms of the maternal grandmother’s supervision, I note, the mother’s submissions about what the risks were and I note that if the maternal grandmother is supervising, the risks may extend to the mother saying something to Z no matter where they are; but being cautious, noting the father’s concerns and balancing all of the issues, I think that whilst supervision with B Services can occur in any of the four places raised by the ICL, if the maternal grandmother is supervising, I do not think it should be at her home or the mother’s home; I think it should be in public places, but I will include the same, which are any restaurant, café, fast food venue, oval or park.
As I have said, the parties are to pay equally for supervision.
Those are my reasons.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 31 August 2023
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