Bates and Bates and Ors

[2009] FamCA 57

FAMILY COURT OF AUSTRALIA

BATES & BATES AND ORS [2009] FamCA 57

FAMILY LAW – CHILDREN – interim proceedings – time child is to spend with members of his family – proceedings discontinued by father – proceedings continue between the mother, maternal grandfather and child’s adult sister – child living with his sister – mother has a history of mental illness – allegations of violence against the grandfather – in best interests of the child for any time spent with his mother and grandparents to be supervised at a contact centre

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D, 61DA & 65AA
Goode and Goode (2006) FLC 93-286

APPLICANT:	Mr Bates [FILED A NOTICE OF DISCONTINUANCE 15/1/09]
RESPONDENT	Ms Bates

RESPONDENT MATERNAL 

GRANDPARENTS:

Mr and Mrs Ramsey

RESPONDENT OTHER PARTY:  Ms Lowe

INDEPENDENT CHILDREN’S LAWYER: Ms CA Nelson

FILE NUMBER: ADF 5163 of 1998

DATE DELIVERED: 22 January 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 22 January 2009

REPRESENTATION

COUNSEL FOR THE RESPONDENT MOTHER: Mr Warburton

SOLICITOR FOR THE RESPONDENT: Warburton Solicitors

COUNSEL FOR THE RESPONDENT MATERNAL GRANDPARENTS: Ms Spizzo

SOLICITOR FOR THE RESPONDENT MATERNAL GRANDPARENTS:	Lempriere Abbott
COUNSEL FOR THE RESPONDENT OTHER PARTY:	In Person
SOLICITOR FOR THE RESPONDENT OTHER PARTY:	N/A

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr Bowler

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Nelson & Co

Orders

1. The mother Ms Bates and the grandfather Mr Ramsey shall each:

   (a)contact the C Children’s Contact Centre (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervised time;

   (b)attend the assessment;

   (c)comply with any appointments made by the Contact Centre for supervised time;

   (d)comply with all reasonable rules of the Contact Centre;  and

   (e)comply with all reasonable requests or directions of the staff of the Contact Centre.

2. If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision of time then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on fourteen [14] days written notice to the other parties and to the Court.

3. If the mother is accepted by the Contact Centre as suitable for supervised time the mother is to spend time with … born on the … June 1998 (“the child”) at times nominated by the Contact Centre each month for one [1] hour, such time spent to be supervised at all times by a member of staff of the Contact Centre.

4. If the grandfather is accepted by the Contact Centre as suitable for supervised time the grandfather is to spend time with the child at times nominated by the Contact Centre each month for half [½] an hour at times nominated by the Contact Centre provided that the time is for half an hour immediately following any time spent with the mother as set out in the preceding paragraph, such time spent to be supervised at all times by a member of staff of the Contact Centre.

5. The other party Ms Lowe shall deliver or cause a responsible adult known to the child to deliver the child to the Contact Centre at the times nominated by the Contact Centre and to collect the child from the Contact Centre at the conclusion of the supervised time. AND IT BEING NOTED that the mother will contribute TWENTY-FIVE DOLLARS [$25.00] each month towards the cost of travel on each occasion of supervised contact.

6. If any fees are charged for the supervision of time spent then the fees shall be paid by the mother and the grandfather as charged by the Contact Centre for each occasion of supervision.

7. If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services or the Director of the Contact Centre recommends in writing a variation of these orders then any party or the Independent Children’s Lawyer on fourteen [14] days written notice to the other parties and the Court may restore the matter to the list.

8. The Court directs the Independent Children’s Lawyer to forward to the Contact Centre copies of the reasons for judgment made this day together with any copies of documents such as Family Assessment reports, medical and psychiatric reports or letters as the Independent Children’s Lawyer considers appropriate.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 5163  of 1998

MS BATES

Applicant

And

MR AND MRS RAMSEY and MS LOWE

Respondents

EX-TEMPORE REASONS FOR JUDGMENT

1. I deliver my reasons and judgment in relation to the question of the time that is spent between the child and various members of his family.  At the first day of the trial, under the Less Adversarial Trial system, the mother and the maternal grandfather sought orders that they spend time with the child pending the conclusion of the trial.

2. The child was born in June 1998 and is therefore aged 10 and a half.  He is the son of the mother Ms Bates, the first respondent, and Mr Bates, the applicant.

3. The father Mr Bates has recently discontinued his proceedings in this Court.  The ongoing proceedings which continue are between the mother Ms Bates, her father, the maternal grandfather, Mr Ramsey, and the child’s sister (the daughter of Ms Bates by another father) who is the other party Ms Lowe.

4. Proceedings between the mother and the father were started some time ago.  Families SA has been involved with the family from time to time but has not chosen to intervene in these proceedings.  An Independent Children’s Lawyer has been appointed for the child.

5. The child has resided with his mother and maternal grandparents for a considerable period of time.  In April 2008 the mother ceased to reside with her parents after an argument with the maternal grandfather.  The child has been residing with his sister Ms Lowe since that time.  Ms Lowe resides in M with her husband and young child.

6. The mother has previously made serious allegations of abuse by the maternal grandfather.  Ms Lowe also alleges that the grandfather has been violent and controlling in the past towards her.

7. The mother has a history of mental illness.  She has at times resided in temporary accommodation at L House and at times resided with her parents at E. 

8. The affidavit of the mother's solicitor filed for the hearing before me on Monday, 19 January 2009 annexed a report from the mother's psychiatrist dated 4 January 2009, which said:

   “This is to certify that [the mother] has become severely depressed, necessitating a change of antidepressants.  In my opinion, she'll be unfit to attend Court for Monday, 22 December 2008 to Sunday, 22 March 2009 inclusive.”

9. The mother was, however, present with her lawyer on Monday, 19 January, wished to participate in the first day of the trial and did so.

10. There are significant issues to be determined at the trial.  This is a complex matter, and on the first day before me the mother, grandfather and Independent Children’s Lawyer were all represented.  Ms Lowe was unrepresented.

11. The issues include the mental health of the mother and Ms Lowe and allegations about the grandfather abusing the mother.

12. When determining the time to be spent by the child with his mother and grandparents, it is necessary to consider and apply the provisions of Part VIII of the Family Law Act. The 2006 case of Goode and Goode (2006) FLC 93-286 requires consideration of those relevant matters when making interim orders pending trial. In particular, I consider and incorporate in these extempore reasons sections 60B, 60CA, 61D and 61DA. I note that section 60B(2)(b) refers to children's rights to spend time with other people such as grandparents and other relatives.

13. Following section 61DA(3) it is not appropriate in the circumstances to consider the presumption that the child’s mother and father have equal shared parental responsibility. The most significant provision is section 60CA, which is repeated in similar terms in section 65AA; namely, that the Court must consider the best interests of the child as the paramount consideration.

14. When considering the application of the provisions to decisions on an interim basis, the Full Court in the matter of Goode and Goode (Supra) said:

    “In our view, some of the comments of the Full Court in paragraph 18 are still apposite.  For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is "significantly curtailed".  Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute, and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future.”  (Full Court referring to Cowling and Cowling (1998) FLC 92-801 and C and C (1996) FLC 92-651).

15. I also refer to, but do not quote, paragraphs 78, 80 and 82, in particular 82(j) and (k), of the decision in Goode and Goode (Supra).

16. I turn to consideration of the factors which are required to be considered in section 60CC.

17. A primary consideration relates to the meaningful relationship between each of the parents.

18. The father has discontinued his proceedings in this Court.  The mother seeks interim orders that provide her with regular unsupervised weekend time with the child.  The grandfather seeks similar orders.  They ask that the child spend time overnight with them at the grandparents' home.  Ms Lowe opposes the orders based upon her concern for the child being unduly subject to pressure from his mother pending the trial and the child’s expressed wish.

19. The Independent Children’s Lawyer's counsel suggested that supervised time at the S Contact Centre every three weeks would be appropriate.  Ms Lowe indicated that she preferred supervised time every month.  I have heard this morning that the parties prefer, if contact is to be supervised at a Contact Centre, that the time be spent at the C Children's Contact Centre rather than the S one which was discussed at the hearing before me earlier this week.

20. When considering the interim orders, the Court must take into account factors which impinge upon any benefit to the child, such as the factors relevant to the second primary consideration and some of the additional considerations.  The available reports of the experts refer to the importance of establishing a beneficial relationship between the child and his mother if this is possible.  The other primary consideration concerns the protection of the child from harm, whether that is physical or psychological harm.  The issues to be determined at the trial concerns these important factors.

21. The mother has provided the Court with a recent psychiatrist's report indicating that she is suffering from severe depression.  The mother has made allegations as recently as July 2008 that her father assaulted her in April 2008.  In that affidavit (which is document 124, filed on 22 January 2008) the mother said that residing with the child at her parents' home was "untenable".

22. Another significant matter raised by the Independent Children’s Lawyer's counsel is the report from Mr O, the child’s therapist at CAMHS.  Exhibit 1 is a letter of 9 January 2009, which refers to the child feeling upset "because of how mum tries to get me to live closer to her", and the child has said he "feels like mum puts me on a guilt trip" about not living with his grandparents and her.  These are factors which need to be considered when contemplating the need to protect the child from harm from being subjected to or exposed to abuse, neglect or family violence.

23. In the additional considerations, one of those is the child’s views.  The last independent report about the child’s wishes is some months old.  He wanted to see his mother and grandparents.  Exhibit 1 suggests the child is concerned about pressure from his mother.

24. The nature of the relationship the child has with each of the relevant persons is also a significant consideration.  The child has had a close bond with his mother and grandparents.  Ms Lowe maintains that the child now has a close, loving bond with her, her husband and her son.

25. There is also the question of the willingness and the ability of each of the parties to maintaining a relationship with the other relevant persons and their capacity to care for the child.

26. Interim orders were made by consent in August 2008 which placed the child in the household with Ms Lowe at a time when it was noted that Ms Lowe was privately making arrangements for the child to see his mother and grandparents and that all parties had indicated their agreement with that course.  Difficulties have arisen thereafter, including the failure of the parties to agree on costs of transport for the time it was proposed to be spent.

27. I also have to consider the likely effect of separation from each of the relevant parties.  The child has been separated from his mother and grandparents, to the extent he has not resided with them, since April 2008.

28. There are also practical difficulties and expense to be considered.  This has been an issue in the past, due to the distance between E, where the grandparents reside and where the mother has resided from time to time, and M, where Ms Lowe resides with the child and her family.  The child is about to resume his schooling soon.

29. The question of the capacity and attitude of the parties and matters of family violence directly related to the need to protect the child from emotional and psychological harm have already been considered.

30. I have weighed carefully all of the relevant matters, some of which indicate the appropriate order may have been for unsupervised time, but I have also considered the other matters which weigh against unsupervised time at this stage pending determination of significant issues.

31. The evidence is yet to be tested whether the child’s best interests will indicate an amendment to those orders.  However, by way of interim orders, I am satisfied that it is in the child’s best interests that any time spent with his mother and grandparents should take place in circumstances which should ensure that he is not exposed to violence or the risk of emotional or psychological pressure about his wishes or any other form of psychological or emotional pressure.  This requires the presence of independent qualified supervisors such as those available at a Contact Centre.  The parties have indicated that they wish that Contact Centre to be at C rather than S.

32. The distance to be travelled and the impact upon the child’s other activities suggests that once a month is an appropriate balance pending the conclusion of the trial in this matter in July.  Such an arrangement on a temporary basis I consider to be in the child’s best interests.

33. I note that the mother has agreed to contribute $25 once a month towards Ms Lowe’s costs of transport on each occasion and that counsel for the grandfather will take his instructions upon his willingness to add to the cost of transport.

34. I do not have any information about the availability of times when the C Contact Centre can commence the supervised time, and it will be necessary for the parties to undergo the appropriate assessment.

35. At this stage I am not proposing to make any order in relation to time spent by telephone, in view of the issues concerning the question of the pressure that it is asserted may be placed upon the child pending a determination of that allegation at the trial.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  4 February 2009