BERAN & MATOS

[2018] FCCA 3055

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERAN & MATOS [2018] FCCA 3055

Catchwords:
FAMILY LAW – Interim parenting arrangements for child aged 3 – time spending arrangements with father – high conflict between parents – allegations of family violence – child has spent supervised time at CCC with father – movement to unsupervised time – meaningful level of relationship – risk of exposure to family violence –assessment of risk – proper level of relationship with parents – gradual and incremental arrangement – best interests.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2)(a)

Applicant: MR BERAN

Respondent: MS MATOS

File Number: ADC 1756 of 2018

Judgment of: Judge Brown

Hearing date: 19 July 2018

Date of Last Submission: 19 July 2018

Delivered at: Adelaide

Delivered on: 19 July 2018

REPRESENTATION

Counsel for the Applicant: Ms Horvat

Solicitors for the Applicant: R J Cole & Partners

Counsel for the Respondent: Mr Roberts

Solicitors for the Respondent: Andrew Hill & Co

ORDERS

1. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 26 October 2018.

2. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

   (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

3. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

4. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

5. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference

   NOTING:

   A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

   B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

   C.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The child [X] born 2015 live with the mother.

2. The child spend time with the father as follows:

   (a)on Monday 23 July, Monday 30 July and Monday 6 August 2018 between 12:00pm and 4:00pm;

   (b)thereafter on Monday and Tuesday of each week between 12:00pm and 4:00pm; and

   (c)on Father’s Day between 12:00pm and 4:00pm.

3. The child is to be exchanged at the Suburb A Police Station unless the parties agree otherwise.

4. Each party is to undertake a parenting course, during the period of the adjournment NOTING it is not to be the same course on the same date and time.

5. The parties are restrained and an injunction issue restraining them both from:

   (a)Consuming alcohol to excess or non-prescribed or illicit drugs whilst the child is in their care or 12 hours beforehand;

   (b)Denigrating the other in the presence or hearing of the said child or permit any other person to denigrate the other party in the presence or hearing of the said child;

6. The mother be restrained from changing the child’s residential address from outside a 25km area of the Suburb A Post Office.

7. The parties are to exchange with one another their mobile telephone numbers and those numbers are not to be used except in case of an emergency or arising with respect to the children or in respect of contact arrangements.

8. Each party is to inform the other in the event the child becomes unwell or in the event of any medical emergency or treatment by a medical practitioner.

9. Further consideration of the matter is adjourned to 2 November 2018 at 9:30am.

10. This matter be listed for final hearing before Judge Brown on 17 & 18 April 2019 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1756 of 2018

MR BERAN

Applicant

And

MS MATOS

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally immediately following the interim hearing concerned.  The parties’ competing applications have been fixed for hearing in the early New Year and a family report ordered.  In these circumstances, it is appropriate that the reasons be transcribed.

2. This afternoon, I have to deal with an application in which Mr Beran is the applicant and Ms Matos is the respondent.  The parties are the parents of [X], who was born on 2015.  So accordingly, at the present time, [X] has just had his third birthday.

3. Mr Beran, to whom I will refer as “the father”, commenced these proceedings on 7 May 2018.  He requested that his application be listed urgently.  In these circumstances it was listed for its first mention on 19 June 2018, which was a modestly abridged time, when compared to other applications. 

4. At that stage, the father sought a number of procedural orders dealing with the dispensation of service but, significantly, so far as [X] was concerned, he sought to spend time with the child on each Monday and Tuesday between 12 midday and 4 o’clock, which was to be extended to an overnight period from midday on Monday to 4 pm Tuesday, after about two months.

5. It was the father’s position that there was a need for the court to deal urgently with his application because earlier he and Ms Matos, to whom I will refer to as “the mother”, had gone through a process of community based mediation, which had resulted in them being able to agree on a regime of time between him and [X].

6. This regime envisaged him spending time with [X], in the mother’s presence, at a play café, before moving on to time at the Suburb B Children’s Contact Centre “the CCC”, which would be professionally supervised and would result in a report of his involvement with [X] being prepared by an independent person, who would provide objective information as to how father and child interacted with one another.

7. From the father’s perspective, this regime had proceeded successfully but had then broken down, on his case, because of the non‑cooperation of the mother, who was apparently unwilling to build on the base of time, which he had successfully established with [X], at the CCC and earlier. 

8. It was these circumstances, which led to his request to have an early listing of his application.  It being his position that he had not spent time with [X] for a significant period of time – from, I think, sometime in March/April.  It is his case that the court needed to act expeditiously to put his growing relationship with [X], back on track.

9. Significantly, in my view, in his application, the father is not seeking to change the living arrangements of [X].  Nor is he, as far as I understand it, seeking what is commonly called a shared care or equal time regime.  Rather, he is focussed on obtaining orders which will allow him to spend time with [X] regularly.

10. By way of background, Mr Beran is employed as a (occupation omitted).  Ms Matos is not currently working, I think.  She has a number of other children.  There is some controversy about arrangements for their care.  It is the father’s position that, for all sorts of reasons, the mother’s other children are not currently in her care.  That is a controversial issue, given the previous involvement of the child protection authorities. 

11. At any rate, the parties were in a relationship and lived together from some time in 2011.  The mother says it was late 2011.  There is a significant level of controversy as to when they actually separated and what the circumstances of their separation were.  This has implications for the extent of the father’s relationship with [X].

12. The father asserts that there was a significant period of time when the parties were separated under the one roof and, as a consequence, he was very much involved in providing care for [X] from a young age.  The mother asserts otherwise.  This controversy indicates, without doubt, the fact that parties currently do not have an easy relationship with one another. 

13. It is the mother’s position that, during the parties’ relationship, she was the subject of a significant incident of family violence, which resulted in her having to be hospitalised on one occasion.  The father has a very different view about that incident, denying he was the instigator of the incident.

14. It is common ground that the police arrived, at the parties’ then home and the mother was taken to the Suburb B Hospital.  At this stage, I have not received any independent documents from either the police or the Suburb B Hospital about that incident. 

15. However, I have received the Department for Child Protection history in respect of [X] and prior to his birth.  Given the Department’s prior involvement with his older siblings, [X] was described as a high-risk infant. 

16. However, at that earlier stage, the Child Protection worker, who visited the family, noted that the mother had made significant changes to her life, which included that she had stable housing; her mental health was stable; and the father of the baby, that is, Mr Beran, was supportive.  It is accepted by the mother that she has had some history of depression.  She cannot be criticised for that.  She also acknowledges some prior history of some illicit drug use, although it is her position that this is now behind her.

17. As is frequently the case in matters of this kind, the parties have very different views as to the degree of their involvement with [X].  The father’s position is that he was very much involved.  The mother does not agree. 

18. I am not in a position to resolve that matter at this stage.  What is significant is that the parties did agree after having some mediation with Ms L, I think it was, that there would be some time at the Children’s Contact Service, operated by Anglicare at Suburb B, and I have a report.

19. The first visit, after one was cancelled in August due to illness, occurred on 10 September 2017.  The report indicates that when Mr Beran came into the room, he greeted [X] with a loud, happy “Hey you,” to which [X] immediately smiled in recognition. 

20. So that was in September 2017, well after the parties had finally separated, in mid-2016, so a significant period of time.  The report of the observation indicates that [X] played on a bike and he seemed to be happy and relaxed with his father.

21. During the next visit, it is reported that Mr Beran picked up [X], who squealed excitingly, “Put me down.”  At the end, Mr Beran hugged [X], who squealed.  Mr Beran gave him his bag, and said, “See you soon.” 

22. The next visit, the third one, took place on 8 October 2017.  [X] is reported to have referred to Mr Beran as “Daddy” frequently.  At the end of the visit, Mr Beran picked him up and hugged [X] and asked for a kiss, and then kissed [X] on the cheek.

23. The fourth visit, 22 October 2017, at the beginning [X] ran in and pointed to Mr Beran, saying, “My daddy.”  Mr Beran gave [X] a big cuddle, and so on and so forth.  At the farewell, [X] gave Mr Beran a kiss on both cheeks, and Mr Beran said, “I love you.” 

24. The visit of 5 November 2017, at the beginning, [X] ran the room where Mr Beran was waiting.  He had a big smile on his face, and squealed “Daddy” as he ran towards Mr Beran, holding his arms up for a cuddle.  Mr Beran scooped [X] up and gave him a big hug.  The visit seems to have progressed in a similar vein.

25. The visits in the first tranche finished in late 2017, when it was agreed that there would be a further tranche of visits.  They have not quite been so successful, and Mr Beran has provided a more recent report, I think, which indicates that there have been some problems and some missed visits.  He ascribes the difficulties and the missed visits to Ms Matos.

26. Certainly, the last such visit occurred on 10 March 2018, when Ms Matos was described as being agitated and angry and to have told the workers that she was not happy with the Children’s Contact Service at all and that the reports prepared by them are full of lies.  Then there occurred a complete breakdown in time between father and child. 

27. It is against this background that Mr Beran has brought this application.  It is his position that he is not pursuing any overnight time at this juncture, but at this stage he wants to be able to spend some daytime periods with [X].

28. He proposes that this time would take place at the home of his father, [X]’s paternal grandfather, and occur on the days he has off, Mondays and Tuesdays between 12.00 and 4.00.  The mother’s position is that that is too much too soon, and she proposes a more modest arrangement.  Certainly, she is not comfortable with two days per week.

29. It is, I think, incumbent that I make reference to the principles that guide children’s contact services.  They are funded, primarily, by the Australian Government, and their overall objective is to assist separated families to move to self-management of contact arrangements wherever possible. 

30. And in this context, I think I have to bear in mind that there is a great demand from all sorts of families for the use of children’s contact centres, and the parties in this matter have had a number of visits – not all of them have occurred.  There are other families, who are on waiting lists, who also need to use the facilities at Suburb B.

31. What I have to do, basically, is determine issues to do with [X]’s safety.  That is a difficult task at this interim hearing stage.  Because at this stage I have not seen either of the parties under cross-examination, I am not in a position to make any findings regarding their truthfulness, or otherwise.

32. It is essentially the mother’s position that the father is a dangerous person, who represents an inappropriate role model for [X].  The father’s position is that the mother has some issues to do with her mental health and her parenting, and she is perhaps opposing his relationship with [X] because of her feelings of insecurity about that.

33. Those are complex issues for me to deliberate upon at this interim hearing stage and their ultimate resolution may well have to await a final hearing.  As I said earlier, I am going to fix the matter for final hearing, at which stage there will be more time for evidence to be presented and tested.

34. However the same legal principles apply, at both the interim and the final hearing stages.  What is the difference between the two stages of decision making is the nature of the evidence available and the depth of the hearing.

35. However, regardless of whether a decision is made at the final stage or on an interim basis, I have to be satisfied that whatever order I make is in [X]’s best interests [Family Law Act section 60CA]. In determining whether an order is in the child’s best interests, I have to bear in mind a long list of matters contained in the Family Law Act, at section 60CC, which is headed How A Court Determines What Is In A Child’s Best Interests.

36. The section has two main parts, which provide a long list of consideration, which are divided in two categories – primary considerations and additional considerations.

37. As the name suggests, “primary considerations” are usually to be given more weight, and there are two of them, which are as follows:

    a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

38. In cases of this kind, the parties concerned invariably approach the case from one of those considerations.  From the father’s perspective he urges me to give greater weight to the benefit of [X] having a meaningful level of relationship with his father.  The mother, of course, says I have to put protective concerns to the fore, particularly the risk of him being exposed to family violence and the related issue that, because of his past conduct towards her, the father is not an appropriate or safe role model for a child of [X]’s age.

39. From Mr Beran’s perspective, the time at the children’s contact centre, with [X], went well.  The evidence that I have from the CCC confirms this to be the case.  I have taken some care to read the report carefully and, in this context, I have already made some observations about its contents. 

40. I am not in a position to determine what happened when Ms Matos was taken to the Suburb B Hospital.  The police were called.  It seems to have been a fairly significant incident.  But, at this stage, I am not in a position to determine definitively what actually happened and who was at fault.

41. Rather, I must examine the incident from [X]’s point of view and ask myself questions about what are the implications of it for him.  Is there an appreciable risk that [X] will come to some form of harm, if he spends some time with his father, in a suburban setting, which does not include overnight time, after I have been provided with some objective evidence that indicates there is a viable and happy and ongoing relationship between [X] and his father?

42. In my view, it is in the context of the likely answers to these types of question, which will provide the best tool for appraising the extent of any risk arising for [X].  I also cannot ignore the risk of [X] being deprived of a possibly significant relationship with his father.

43. I concede that I have to give greater weight to protective concerns. That arises because of section 60CC(2)(a) of the Act. But that does not mean that I am to disregard the other primary consideration regarding the potential benefits, arising for a child, of having a meaningful level of relationship with a parent.

44. In this context, I must, I think, bear in mind the principles and objects of the Family Law Act which are contained in section 60B of the Act. Those principles speak of a child’s right to know and be cared for by both their parents and to regularly spend time with each of their parents. Accordingly, the legislation recognises the fundamental entitlement of children to have a proper level of relationship with their parents.

45. At this stage, clearly, the parties have a very difficult relationship with one another.  From the mother’s perspective I suspect that any regime of time for [X] to spend time with his father will be too fast in its implementation. 

1. Similarly, from the father’s perspective, any such regime will be too slow to be implemented.  That is not my primary concern.  I have to focus on what I think is important to [X] and balance the issues arising from each of the primary considerations. 

2. There are indications, as I have said to Mr Roberts, that Ms Matos is not particularly supportive of the child having a relationship with his father.  I think it is time to move away from the children’s contact centre, in the facilitation of that relationship, given the number of visits which have occurred and the fact that they have been successful. 

3. I am not of the view that although I cannot make positive findings about all manner of incidents, which have occurred between the parties in the past, including the incident which resulted in the mother’s hospitalisation, that the risk, which is delineated in this case, is one that is so extreme that there should be no daytime contact between father and child.  Rather, what is proposed, by the father, is commensurate, I think, with the risk that arises from the parties’ difficult and conflicted relationship.

4. I think it is probably better, principally because I think this case has a level of complexity about it, that there be a family report sooner rather than later, and in this context, I will fix the matter for final hearing. 

5. Because as I said to Mr Roberts, the age of three is the age when one in my position is thinking about overnight time.  At the end of the day a meaningful parental relationships means, I think, normalising relations between parent and child.  It means that a child is able to interact with a parent in a variety of contexts and settings.  Both fun settings and more mundane settings, putting a child to bed, preparing breakfast, cutting sandwiches, that kind of thing.  That adds meaning.

6. Both parties are willing to undergo a parenting course.  That will be useful but at this stage I do not consider that that should be an essential pre-condition to moving to what is, in my view, a gradual and incremental arrangement for [X] to extend his relationship with his father. 

7. I am going to make the arrangement for the first three weeks Monday only and then I will go to Monday and Tuesday just so that there is some opportunity for the child to get accustomed to the new arrangements.  And, more significantly perhaps, for Ms Matos to get used to it as well.

8. But regrettably although I do not like using police stations to exchange a child – children associate police stations with people who do things against the law – but at this stage it perhaps is best that it is a police station. 

9. For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 26 October 2018