BENTLEY & BENTLEY

[2014] FamCA 94

FAMILY COURT OF AUSTRALIA

BENTLEY & BENTLEY [2014] FamCA 94

FAMILY LAW – CHILDREN – Consent Orders – Where sole parental responsibility was allocated to the mother – Where the child is to live with the mother and spend supervised time with the father commencing at a contact centre and moving to contact being supervised by an agency at the paternal grandparent’s home –Where the mother seeks an order preventing contact occur at the home of the paternal grandparents – Where the father has exhibited violent and controlling behaviour to the mother – Where there is evidence that the father kissed the child on the vagina – Where the mother fears that the child would be exposed to the mother’s anxiety flowing from contact occurring at the paternal grandparents’ home – Where the Independent Children’s Lawyer proposes that contact be able to take place at the home of the paternal grandparents – Where an order is made that contact supervised by an agency take place at the paternal grandparents’ home. 

FAMILY LAW – COSTS – Application for costs made by the Independent Children’s Lawyer against each of the parties – Application for costs allowed.

APPLICANT: Mr Bentley

RESPONDENT: Ms Bentley

INDEPENDENT CHILDREN’S LAWYER: Ms Eldershaw

FILE NUMBER: SYC 5965 of 2012

DATE DELIVERED: 6 February 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 3, 4, 5 & 6 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Brien

SOLICITOR FOR THE APPLICANT: Redmond Hale Simpson

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: KDB Holmes

Orders

1. By consent, orders are made in the terms of the document titled Terms of Settlement (Exhibit A dated 6 February 2014) and set out hereunder:

1.      That the mother shall have sole parental responsibility for making decisions about major long-term issues relating [N] born … June 2009 (“[the child]”).

2.      That [the child] shall live with the mother.

3.      That [the child] shall spend time with the father as follows:

a.For a period of three (3) months from to date of these orders, for two hours once per fortnight at the [B Contact Centre] at [Suburb C] on days and times to be determined by the Contact [Centre].

b.Upon the expiration of Order 3(a) above and for a period of three months, for three (3) hours once per fortnight with such time to be supervised by a professional supervisory agency as agreed between the parties but failing agreement, by “[D Supervisors]” on days and at times to be determined by the supervisory agency (“the Agency”) but noting that both parties request Saturday if available but failing Saturday, then Sunday on the same weekend; and

c.Upon the expiration Order 3(b) above and thereafter, for four (4) hours once per fortnight with such time to be supervised by the Agency, but noting that both parties request Saturday if available but failing Saturday, then Sunday on the same weekend.

4.      For the purpose of facilitating Order 3 above:

a.The mother shall not attend or intervene during [the child’s] time with the father;

b.The father will be solely responsible for all costs relating to the provision of supervision, including the cost of any intake assessment and report writing;

c.Each party will, within 14 days of the date of these orders, contact the Agency to arrange an assessment for supervised contact between [the child] and the father;

d.Each party shall attend any intake assessment procedure required by the Agency;

e.Each party shall comply with all reasonable rules of the Agency and directions or requests of its staff in relation to all aspects of the engagement of the service, including the intake assessment and ongoing contact.

5.      [The child] shall have telephone contact with the father each alternate Saturday (being the Saturday on which she is not spending time with him) at times to be agreed but failing agreement between 10am and 11am.

6.      The mother shall permit [the child] to telephone the father at such times as [the child] reasonably requests.

7.      The mother shall cause [the child] to telephone the father on [the child’s] birthday, the father’s birthday, Greek Easter Sunday, Christmas Day, New Year’s Day and Father’s Day at times to be agreed but failing agreement between 5pm and 6pm.

8.      For the purpose of implementing Orders 5, 6 and 7 above:

a.The mother shall cause [the child] to telephone the father; and

b.The father shall provide to the mother a telephone number on which he can be called.

9.      Except as provided by any other order to the contrary, that the father be restrained from approaching [the child].

10.    That the father be restrained from publishing any photo, image or video of [the child], including but not limited to any social media forum.

11.    The father be restrained by injunction from approaching the mother or entering the mother’s residence.

12.    That the father be restrained by way of injunction from approaching or entering any child care facility and school attended by [the child].

13.    Except as otherwise provided by any other order to the contrary, the father be restrained by injunction from making telephone calls with [the child] at any childcare facility and her school. 

14.    The mother shall forthwith authorize and keep authorised any school or extra curricular activity in which [the child] is enrolled to provide the father with such information as he reasonably requests about [the child’s] progress and participation at the school or in the activity, copies of school or progress reports for [the child], newsletters, circulars and photographs of [the child] at his request and expense. 

15.    The mother shall promptly inform the father of any medical issue experienced by [the child] that requires her to be admitted to hospital and all reasonable particulars relating to that admission. 

1. For the purposes of facilitating the time with the father pursuant to paragraph 3 of the Terms of Settlement it is ordered that the time the father spends with the child may take place at the home of the paternal grandparents.

1. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. Within three months from today’s date the father pay to the NSW Legal Aid Commission $3,820.60.

1. Within three months from today’s date the mother pay to the NSW Legal Aid Commission $3,000.00.

1. Orders 3 and 4 are subject to either party obtaining a waiver of all or any of the contribution from the NSW Legal Aid Commission within one month of today’s date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bentley & Bentley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5965 of 2012

Mr Bentley

Applicant

And

Ms Bentley

Respondent

EXTEMPORE JUDGMENT

1. These are proceedings in relation to the child N, (“the child”), who was born in June 2009.  She will be five years of age this year.  The hearing commenced on Monday of this week and after all of the lay evidence, the parties had some discussions and ultimately have been able to thrash out parenting proposals.  They have agreed that the child will live with her mother, that her mother will have sole parental responsibility for the major long-term issues in relation to the child.  They have agreed on a regime of supervised time between the father and the child, graduating from the current B Contact Centre to a more mobile arrangement with an agency, going from three hours a fortnight to four hours a fortnight over time.  They have agreed to a raft of other orders, and if I might say, those orders make sense of the evidence as it developed before me.

2. The only controversy is that the mother seeks an order that once the supervision is by an agency away from the contact centre, the time is not to be exercised at the home of the paternal grandparents.  The father seeks an order that he be permitted to make all decisions in relation to where the contact is exercised, and the Independent Children’s Lawyer (“ICL”) proposes that the home of the paternal grandparents can be the venue for that time. 

3. The Family Report writer is Ms E.  The parties have had some discussions with her, not in open Court.  Ms E was sworn in before me and briefly cross-examined on behalf of the mother.  It transpires that the mother is concerned that her anxiety in relation to the home of the paternal grandparents might be transmitted to the child or might affect the child.  In other words, she is concerned that her own  anxiety would be such that the child would pick up on it and it may have an adverse impact on her or, in any event, on the benefit of the contact occasions.

4. This is not a binary equation.  Ms E discussed some of the advantages of the time being at the father’s home, in terms of simply the physical convenience of being at home rather than being out at some venue if the weather changed or if the child became fractious or tired.  She identified the benefit of ready access to the father’s family, access to cousins and other members of the paternal family.  She identified a more natural occasion, rather than something that was unnecessarily artificial.  Therefore it is not the situation where there are only disadvantages to the home of the paternal grandparents and no advantages. 

5. The agreed evidence has the mother being the victim of domestic violence.  The agreed evidence has the father exhibiting violent and controlling behaviour to the mother, behaviour that has had an observable, deleterious effect on the mother.  She says that she is better than she was.  She has had some assistance over time from a clinical psychologist.  She does not feel all of the symptoms that she has felt in the past.  The mother is the primary caregiver – virtually, the sole caregiver – of this little girl, and so her sensibilities are particularly important.  But as I say, there is another side to this issue, and the problem is there is an obvious advantage for the father’s time, especially for limited periods to be spent at his home.  His home happens to be the home of his parents. 

6. The evidence has it that the paternal grandmother has not always enjoyed good health.  The evidence is that happily, she is in remission in relation to a cancer.  It is likely that it would be easier for her if the father’s time with the child did not have to be spent away from her home.  There was raised in the evidence an issue about the attitudes of the paternal family that may have been disadvantageous to the child.  Ms E recommends that the members of the paternal family get some advice about that. 

7. Ms E ventured into what is a complicated issue to do with cultural differences in the way family disputes are ventilated. There may be different approaches but in it must be accepted as the Family Law Act flags, that it is harmful to children to be exposed to violence in the form of language or deed. And, as I understand the research, the younger the child, whether preverbal or a baby, the greater the potential damage. So where there is a dispute between the parents about what is appropriate, the court would always default to a conservative view.

8. I do not for a moment think that the paternal grandparents wake up in the morning and want anything but the best for this little girl.  Nevertheless it is not acceptable for her to be exposed to loud arguments between adults.  Children do not have a way of processing those things.  If they cannot verbalise their complaint about it, then that exposure may well just cause them damage.  The events will be supervised in future and the supervisor will stop the event. 

9. The father kissed his daughter on the vagina when she was two years of age.  His mother said she did not think that was a problem, although in all her years as a mother and a grandmother, she has never seen the need to do it herself.  That makes me think that she does not consider it to be appropriate behaviour.  The father gave evidence that the message he understood from one of the parenting sessions he attended at Suburb F was that it can be appropriate for “girly games” to be played between mothers and children.  He also gave evidence that he would not be unhappy if somebody else in a playful way did the same thing with his daughter.  I think that was a lie.  I hope it was a lie.  The father did not say he wants to continue that behaviour now that his daughter is a bit older, but I do not believe that the paternal grandparents, either of them, would stand by and allow him to do such a thing again. 

10. Some things have to change.  The mother has had a terrible experience.  There are things of objective concern that the child has been exposed to and the mother is worried that the child is going to be put in the centre of the family that seems to condone those sorts of things.

11. Whether it is just a sad reflection on today's society or whether it is a logical and proper thing, there are restrictions on what fathers can do with their daughters.  I trust that the father now understands that he must ensure that he and his daughter are not together when either of them are toileting or bathing, and that there is another adult present if it is necessary that either or both of them have to be undressed in the same room.  Families have different practices; by reputation some adults walk around the house naked.  However, no harm will come to the child if those conventions are observed.  No harm will come to her if her father is not involved in her toileting or if she is never in a position to watch him go to the toilet.

12. The mother is anxious and she has every reason to be anxious.  She has agreed to a regime which will have a third party, trained in this sort of thing, present at all times the child is with her father.  As Ms E says, the mother will be able to get feedback from that third party.  The child, increasingly, will be able to report anything odd that happens.  The mother will be able to hear about those things.  I am not suggesting she should be cross-examined about her time with her father.  Just that the child will report anything untoward.  The mother will have the comfort of knowing that there is a supervisor there.

13. On balance, especially given that the time is so short, – the benefits of the environment of the father's own home outweigh the risks.  There will be ready access to loving paternal grandparents, access to the extended paternal family, which is more likely at that family centre.  I will allow the time to take place at the home of the paternal grandparents. 

14. And could I say I congratulate the parties.  This cannot have been easy for either of them.  The hearing was difficult, notwithstanding what I thought was a sensitive approach by each of the advocates. 

15. The parents were very distressed at times, sometimes distressed at the same time, and I appreciate how very difficult these proceedings have been for them.  I acknowledge how difficult it must have been to finally hammer out an arrangement them both, no doubt, secretly hoping for something else but compromising for the benefit of their daughter.  The parents are to be congratulated.

16. The document titled “Terms of settlement” is exhibit A and by consent, I make orders in terms of that document.

17. I note that paragraphs 9, 11 and 12 are for the personal protection of the mother and the child.  It is important to say that the legislation implies a power of arrest without warrant in relation to a breach of those orders.  The father will get some advice from his lawyers about this but it is not like the situation with a normal civil order where somebody would bring an application and establish there has been a breach of the order and only then could the order be enforced.  If a police officer believes on reasonable grounds that there has been a breach of one of those orders the officer is able to arrest a person.  That reflects the seriousness of the type of orders agreed to.  I am sure the father will not let himself get into that situation.

18. There is an application for costs on behalf of the ICL, following up an indication to the parties that they would be paying half each.  The costs are about $11,000.  The father has paid some money already.  Each of the parties says that there was some difficulty with that and the father says that he needs a bit longer to pay.  His evidence about his situation is a bit odd.  I do not have a precise recollection of it.  I think he said his annual income is at $23,000 a year now.  He is self-employed.  He was earning a bit more than that.  I think I was told figures like five or six hundred dollars up to $1300 per week at some point. 

19. He received a payout in relation to his departing from a government agency.  He had some money in the bank and he spent it on a qualification in healthcare, which seems to not have carried through into remunerative employment.  I do not know what the pay out was.  I do not know what assets he has.  I know he lives with his parents and he does not have any costs associated with that living arrangement.  He is saving up to move out.  I do not think he ventured when he was going to move out but he wants to do so on the basis of buying something rather than renting. 

20. He pays an amount of child support that would not keep a rabbit alive.  Mind you, I think that is the assessed rate.  Perhaps the mother had reasons for not having pursued that issue.  On the face of it, the father is not paying enough.  That said, he wants an indulgence of another two months to pay and that is reasonable. 

21. It is more complicated for the mother.  She owns her own home.  I do not know what it is worth.  She has a mortgage on it.  I do not know what the mortgage is.  As I understand it, she works part-time. 

22. She was working three days a week, for a government agency in an clerical role.  So not a person of substantial means.  The ICL, as is invariably the case, has been of great assistance.  Thoughtful submissions were made.  The arrangements for the family report were made.  Ms Eldershaw focused the parties’ minds in relation to various issues through her cross-examination.  As a general proposition, the taxpayer should not be funding the child’s representative where the parties are able to do so.  Apart from anything else, it means that the chances of impecunious parties having access to legal aid is reduced every day that contributions are not made.  I am sympathetic to the mother’s position.  I will order that the mother pay $3,000 towards the costs of the ICL.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 6 February 2014.

Associate: 

Date: