Bane and Carroll

[2016] FCCA 1323

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANE & CARROLL [2016] FCCA 1323

Catchwords:
FAMILY LAW – Children – interim hearing – reintroduction of time prior to final hearing.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MR BANE

Respondent: MS CARROLL

File Number: SYC 7613 of 2010

Judgment of: Judge Boyle

Hearing date: 2 May 2016

Date of Last Submission: 2 May 2016

Delivered at: Sydney

Delivered on: 2 May 2016

REPRESENTATION

Solicitors for the Applicant: Corish & Co

Solicitors for the Respondent: Forsters Solicitors

Solicitors for the Independent Children’s Lawyer: Peter Baker Solicitor

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. All prior orders for the father to spend time with the child X born (omitted) 2005 are suspended.

2. The child shall spend time with the father commencing 8 May 2016 on alternate Sundays, on the first two occasions between 10am and 2pm and thereafter between 10am and 4pm.

3. The first 2 occasions shall be supervised by Phoenix Rising.

4. That changeovers on the first two occasions shall occur by, the father arranging the Phoenix Rising supervisor to collect the child from the mother’s home at the commencement of his time and deliver the child to the mother’s home at the conclusion of time.

5. That changeovers shall otherwise occur by the mother delivering the child to the paternal grandmother at (omitted) McDonalds at the start of the father’s time and the father shall deliver the child to the mother’s home at the conclusion of his time and the father shall not enter the mother’s home during changeover.

6. Both parties do all acts and things and sign all necessary documents to engage Phoenix Rising to supervise the father’s time pursuant to these orders.

7. The father shall be solely liable for all of Phoenix Rising’s costs.

8. The father shall have telephone contact with the child each Monday at 7pm for no more than 10 minutes by calling the mother’s landline, or the child’s mobile number, with the mother to encourage and facilitate the child speaking to her father and give her privacy during the call.

9. Both parties are injuncted and restrained from speaking in a derogatory or critical manner about the other parent and their family, or permitting any other person to do so in the presence or hearing of the child.

10. Both parties are injuncted and restrained from discussing these proceedings, or permitting any other person to do so, in the presence or hearing of the child.

11. The father is at liberty to attend all school and extra-curricular functions that parents normally attend.

12. Whilst the child is in the father’s care the father shall ensure that the child does not access the internet by any means other than by her own mobile phone or iPad.

13. The father shall ensure that all personal computers, laptops, iPad’s and any other similar device in his home have a parental lock installed so that pornography cannot be accessed from the devices.

IT IS NOTED that publication of this judgment under the pseudonym Bane & Carroll is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7613 of 2010

MR BANE

Applicant

And

MS CARROLL

Respondent

REASONS FOR JUDGMENT

1. I have before me a parenting application with respect to the child of the parties, X, who was born on (omitted) 2005. The parties were in a relationship, although there is some issue about whether they actually lived together at any point prior to X’s conception and concluding in February 2006. The mother has re-partnered and has two children of that relationship. The father has also subsequently re-partnered and also has two children of that relationship.

2. I have read the father’s outline and minute of orders and his affidavits sworn on 4 April 2016, 27 October 2014 and 5 December 2014. I’ve also read the affidavit of his sister, Ms M. In the mother’s case, I have read her outline of argument and response filed on 26 April 2016 and her affidavits sworn on 22 April 2016 and 25 November 2014. I have the benefit of a family report that has been prepared for the final hearing in this matter which is set down in July.

3. X has spent time with her father post-separation, though not without difficulty and there have been various orders made at various times. The difficulties in this particular instance arose for X following a period of time during the September school holidays, when X accessed pornography on her iPad at her father’s.

4. There is a dispute between the parties about whether the mother told the father he should have parental locks put on the device or not. One would expect that the father should have been alert to the possibilities of a child’s access to unsuitable material and would have taken responsibility for those matters.

5. It seems that event had a fairly traumatic effect on X and on her cousin, A, as is set out in the affidavit of Ms M, who is the father’s sister. It is clear that there has also been an impact on the mother. Unhelpfully, the father did not address in his material whether now all the devices in his home, such as iPads, laptops and so on, have appropriate parental locks put on them. I am told from the bar table that the devices in the father’s home have now had parental locks installed and I propose making an order to that effect to ensure that such an incident cannot happen again for this child.

6. The mother’s position is, in effect, that there should be no orders made for time or, if there are to be orders, that that time should be supervised. The father seeks unsupervised daytime contact on a fortnightly basis.

7. There is a significant background of conflict between these parties. The conflict pre-dates the issue of the iPad and the suspension of time following that.

8. There has been an agreement between the parties it seems, arising from mediation earlier this year about telephone calls. It was the mother’s understanding that there was an agreement for the father to be able to telephone X three times a week. It was the father’s understanding that he could choose one of those three occasions for a telephone call at 7pm. I propose making orders that will regularise that so it happens once a week at 7 pm and therefore X knows that she’s going to get a phone call so that she is not left disappointed.

9. Turning to the matters I must take into account under section 60CC in order to determine what is in X’s best interests. Some of those matters are discussed in the family report. Significantly, with respect to X’s views, the report writer had the benefit of seeing her over the course of the day. He sets out that X played throughout the day with her brothers from her father’s current relationship, B and C. They watched a movie with B’s head resting in X’s lap[1].

   [1] Para 47, Family Report.

10. X was seen with her father alone[2]. She gave her dad a hug. The report writer observed that the meeting was initially somewhat stiff and uncomfortable, and X afterwards said, “It was okay seeing dad.” There was a further observation between the father, his wife, the boys and X.[3] X sat next to Ms Bane, the father’s wife. There were polite interchanges. The report writer noted that after a fairly short time the atmosphere became relaxed with more conversations and laughter, though initially it was uncomfortable and stilted. It seemed that everyone enjoyed their time together during the course of that observation.

    [2] Para 48 ibid.

    [3] Para 49 ibid.

11. X is 10 years old and in a matter such as this, where there has been a high level of conflict between her parents, whilst her views might not be determinative, they should be taken into account. Mr H refers to X as not having said she did not wish to see her father and being ambivalent about that issue. Certainly, the observations support that there is a relationship between X, her father, her siblings in his house and his wife that appears to be a relationship that should be fostered, particularly as regards her brothers.

12. Clearly, X has a very close relationship with her mother and those in her mother’s household, with whom she has lived all her life. X relies on her mother and has a need, in my view, for her mother to be confident about the arrangements that are happening for her. Mr H addresses[4] ways the relationship could be established in a way that enables X to feel safe and Ms Carroll to gain some trust in Mr Bane.

    [4] Para 58 ibid.

13. The report writer refers to there being risks for X emotionally and psychologically in having no time with her father and that any long-term supervision would seem to be counter-indicated. However, he does note that supervision would likely provide to the mother some confidence that X is safe in her father’s care so that although it is not a long-term solution, it may provide some assistance to the parties in reintroducing time between X and her father.

14. The supervision that is suggested by Phoenix Rising would mean that the mother would have reports of visits, know how they have gone and know, more importantly, how X is faring from someone objective. X and her mother have a very close relationship and it is likely that there would be an impact upon X of her mother’s anxiety over the reintroduction of time.

15. The issue that gave rise to the application was the accessing of pornography on X’s iPad. As is suggested by the mother’s solicitor in submissions, there were problems other than that and that was really the catalyst for time ceasing. It is clear that cannot occur again. The mother has very appropriately had X see a counsellor to assist her with the problems that she experienced. The father needs to take responsibility over those matters and ensure that X is safe in his care.

16. The orders that I propose making will provide for the first two periods of time to be supervised by Phoenix Rising at the father’s expense and thereafter daytime periods only. This will give X the opportunity to develop her relationship with her father and, significantly, her brothers in her father’s household. It needs to be done in a way that is slow and reassuring for both X and for her mother.

17. Otherwise, I note that the matter is listed for hearing in July and directions have already been made for the preparation of the matter for hearing.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Date: 31 May 2016