Biggs and Biggs and Ors

[2013] FamCA 468

FAMILY COURT OF AUSTRALIA

BIGGS & BIGGS AND ORS [2013] FamCA 468

FAMILY LAW – CHILDREN – changes to interim parenting arrangements –whether there should be any change to the current orders in favour of the maternal grandparents – what orders should be made for the mother to spend time with the children – where the Court was satisfied that the mother has made significant progress at the rehabilitation facility since she was admitted – where the Court adopted the recommendations of the children’ s treating psychologist that the mother should spend time on one day each fortnight with the children – where the Court concluded that it was in the children’s best interests to have a professional supervisor at the maternal grandparents’ home during the period of time when the children are there and when the children are with the mother at the rehabilitation facility – where the Court discharged the previous orders made in favour of the maternal grandparents and made different arrangements with regards to the time that the children are to spend with the maternal grandparents – where it was appropriate that an Independent Children’s Lawyer be appointed

Family Law Act 1975 (Cth)

APPLICANT: Ms Biggs

RESPONDENT: Mr Biggs

2^nd & 3^rd RESPONDENTS: Mr Tindale and Ms Tindale

FILE NUMBER: SYC 2399 of 2011

DATE DELIVERED: 13 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 29 May 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Mr Richardson, SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

SOLICITOR FOR THE 2^ND & 3^RD RESPONDENTS: Litigants in person

Orders

PENDING FURTHER ORDER OR UNTIL THE EXPIRATION OF A PERIOD OF SIX MONTHS:

1. The children R born … February 2008 and S born … November 2009 (“the children”) shall spend time with the mother:

   1.1.from 9.00am until 1.00pm each fourth Sunday in a four week period at C Centre with the next scheduled visit to take place on 16 June 2013;

   1.2.from 9.00am until 3.00pm each fourth Sunday in a four week period at the home of the maternal grandparents (or if the mother is unable to go to that home then at C Centre) with the next scheduled visit to be 30 June 2013.

2. The children’s time with the mother shall be supervised by a professional agency such as Supervision Agency E or Supervision Agency D who shall facilitate the children’s travel to and from C Centre, or to and from the home of the maternal grandparents provided that the father shall ensure to the best of his ability, that the agency used is as consistent as is practicable and the identity of the supervisor is as consistent as is practicable.

3. Mr Biggs (the father”) facilitate a phone call between the mother and the children at least three times per week (Tuesday, Thursday and Sunday) and also on birthdays and special occasions. That the father refrain from speaking with the mother during such phone calls.

4. The father ensure that the mother is promptly provided with school calendars, school reports and provided with timely notification of all matters relating to the children’s health and wellbeing

5. The father facilitate the delivery and the reading of letters sent to the children by the mother and ensure that he sends any correspondence/drawings or other such material prepared by the children for their mother to the mother promptly.

6. That order 2 of the orders made on 19 April 2013 be discharged and the maternal grandparents shall have at least two hours with the children during the period referred to in Order 1.2, but longer if the mother consents. The maternal grandparents can also see the children for all or any part of any occasion referred to in Order 1.1 to which the mother consents.

7. The father pay the costs of the professional supervisor employed pursuant to these orders.

8. The children shall be separately represented and Legal Aid NSW is requested to arrange such representation.

9. The Registry Manager or her nominee notify the Senior Solicitor, Family Law Litigation, Legal Aid NSW of these orders within 7 days from today.

10. Within 28 days from the date of these orders, the solicitors for the parties provide to the Senior Solicitor, Family Law Litigation, Legal Aid NSW copies of all relevant orders, reports, applications and affidavits filed on behalf of the each of the parties. 

11. Within the six month period covered by the orders, the parties can agree in writing to vary the orders I have made and if the parents agree on a change which is opposed by the maternal grandparents, the matter can be relisted before me on 14 days notice.

12. Pursuant to s 65DA(2) and s 62B, 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Biggs & Biggs and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2399 of 2011

Ms Biggs  

Applicant

And

Mr Biggs

Respondent

And

Mr Tindale and Ms Tindale

2^nd & 3^rd Respondents

REASONS FOR JUDGMENT

INTRODUCTION

1. These proceedings concern what further orders should be made for R born in February 2008 and S born in November 2009 (“the children”) to spend time with their mother and whether there should be any change to the current orders in favour of the maternal grandparents.

2. On 19 April 2013 I made some interim orders in favour of the maternal grandparents. The maternal grandparents had, in addition to applying for orders in their own favour, applied for parenting orders in their daughter’s favour. The mother of the children is currently a long term resident of C Centre, an alcohol and drug rehabilitation facility. Her current status at that facility is “level 2”. I made it clear in my reasons of 19 April 2013 that what I was doing was putting in place an interim arrangement pending an application being made by the mother for interim orders. I also made it clear that if the children’s time with their mother became more frequent and extensive, it might be appropriate to eliminate or change the children’s time alone with their maternal grandparents on the basis that the maternal grandparents could see the children when they were with their mother.

APPLICATIONS

1. The mother has now brought an application, by way of an Application in a Case filed on 19 April 2013, for orders in the following terms:

   1.That during [Ms Biggs’] (“the mother”) stay at [C Centre], the children, [R] born … February 2008 and [S] born … November 2009 (“the children”) spend time with the mother as follows:

   1.1Whilst the mother is on Level 2 at [C Centre], every Sunday from 8am to 3pm.

   1.2When the mother progresses to Level 3 at [C Centre], every Sunday from 8am to 3pm and once a month from 8am Saturday to 5pm Sunday with the mother at [Ms and Mr Tindale’s] (“the maternal grandparents”) home or [C Centre]e.

   1.3When the mother progresses to Level 4 at [C Centre], every weekend from 8am Saturday to 5pm Sunday with the mother at the maternal grandparent’s home or [C Centre].

   2.That [Mr Biggs] (the father”) facilitate a phone call between the mother and the children at least three times per week (Tuesday, Thursday and Sunday) and also on birthdays and special occasions. That the father refrain from speaking with the mother during such phone calls.

   3.That the father ensure that the mother is promptly provided with school calendars, school reports and provided with timely notification of all matters relating to the children’s health and wellbeing.

   4.That the father facilitate the delivery and the reading of letters sent to the children by the mother and ensure that he sends any correspondence/drawings or other such material prepared by the children for their mother to the mother promptly.

   5.That the children be conveyed to and from each visit with the mother at [C Centre] by either an employee of [Supervision Agency E] or [the maternal grandparents].

2. Although the father, by way of Response to an Application in a Case filed 27 May 2013, sought an order for the dismissal of the mother’s application, the father indicated he did not oppose orders 2, 3 and 4 as sought and in any event, I would be of the view that it would be in the children’s best interests for those orders to be made.

3. In relation to the mother’s time with the children, the father sought the following orders in his Response to an Application in a Case:

   2.That pending further order the children shall spend time with the mother:

   2.1from 9.00am until 1.00pm each alternate Sunday with the next scheduled visit to take place on 2 June 2013; and

   2.2otherwise in accordance with any agreement reached between the parties in writing.

   3.That the children’s time with the mother shall be supervised by a professional agency such as [Supervision Agency E] or [Supervision Agency D] who shall facilitate the children’s travel to and from [C Centre].

   4.That Order 2 of the Orders made by His Honour Justice Watts on 19 April 2013 be varied as follows:

   2.  “The maternal grandparents are to spend time with [R] born … February 2008 and [S] born … November 2009 (“the children”) on one occasion each month with such visit to coincide with the time the mother is to spend with the children pursuant to Order 2 hereof.”

4. In response to that application, the maternal grandparents sought to maintain the order that they currently have in their favour pending further order. The effect of the maternal grandparents’ position was that in every four week period the children would have only one uninterrupted weekend with their father and would spend a significant period of time on three Sundays out of four travelling and being with their mother on two occasions and being with their maternal grandparents on the third occasion.

5. Both parties sought to rely on a large volume of material that had been previously filed, including significant material that related to the period of time before final consent orders were made between the parents in 2012 and the mother’s admission to C Centre in January 2013.

6. I had the assistance of considering the written evidence of Ms A, the clinical psychologist who has spent significant amounts of time with both children. She also gave oral evidence by electronic means.

7. I also had the advantage of receiving oral evidence from Ms B from C Centre.

8. The focus at all times needs to be on what arrangements are in the best interests of the children.

BACKGROUND

1. It is useful to repeat the background facts as set out in my reasons of 19 April 2013.

2. The father has sole parental responsibility for the children. The children live with him. The orders provided for a staged increase of time that the mother spent with the children.

3. The central feature of the proceedings between the mother and the father related to difficulties emanating from the mother’s use and abuse of alcohol. On three separate incidents, the mother’s blood alcohol reading was in excess of 0.3.

4. Prior to the parents’ separation in April 2011, the mother was admitted to hospital by ambulance on one occasion and admitted to a psychiatric hospital on multiple occasions as a result of her use of alcohol.

5. In May 2011 I made interim orders providing for the mother to have supervised time under the supervision of her mother and step-father.

6. The mother relapsed in September 2011 and was taken by ambulance to hospital and thereafter was admitted to a psychiatric hospital for further rehabilitation.

7. The children’s time with their mother was initially supervised by Supervision Agency D and then by Supervision Agency E.

8. In March 2012 the court received a family report from Dr L.

9. On 17 March 2012 the mother relapsed and was again admitted to hospital.

10. On 17 April 2012 the mother attempted to take her own life by hanging and then lacerating her wrists. 

11. The mother was affected by alcohol when the children were spending supervised time with her on 30 May 2012.

12. After the father and mother entered into final consent orders on 10 December 2012, the children’s time with their mother was suspended by the professional supervisor on 29 December 2012 when the mother was adjudged to have been intoxicated and/or under the influence of drugs. That afternoon ambulance officers attended the mother’s home but the mother refused to be taken to hospital. She was however admitted to hopital at 3am the next day.

13. The mother disappeared from hospital sparking a police and public search.

14. The mother was found and had two periods of supervised time with the children until 16 January 2013, when she admitted herself to C Centre to participate in a twelve month in-house program. The father has taken the children to see their mother at C Centre on 3 February 2013, 23 February 2013 and 16 March 2013.

15. The father currently takes the children to see their mother at C Centre once every three weeks for a period of about three hours.

DISCUSSION

1. I am satisfied that the mother has made significant progress at C Centre from the situation that she was in when she admitted herself there in January 2013.

2. Her presentation through what was a reasonably gruelling day for her exhibited a significant improvement in her health since the previous occasion when she was in my courtroom on 21 March 2013. Consistent with her demeanour, Ms B gave evidence which would indicate that she would shortly be progressing to Level 3 at C Centre and that there was a reasonable probability that she would gain entitlement to be away from C Centre for one weekend in four within a very short period of time. That would give her the ability to be at her parents’ home. Her parents have constructed a granny flat on their property for her longer term accommodation once she completes her time at C Centre.

3. In the context of this application I place significant weight upon the opinions of Ms A. In her affidavit sworn 28 May 2013, Ms A at page 20 of the annexures to her affidavit urges the court to establish consistency of patterns for the children, keeping their cognitive and emotional developmental stages in mind. Initially in her written report, she says, “I would recommend 4-6 months at minimum prior to introducing further change” (that is after the change that is to be made by these orders has taken place). At page 21 of the annexures to her affidavit, she says that that period should be “at least another six months”. I clarified with her in her oral evidence which of those two propositions she preferred and she indicated that she would prefer that any orders that were made were good for six months and I accept that recommendation (subject to some unforseen circumstance occurring which would make it necessary for me to change the orders which I make today).

4. In terms of the frequency of time the children spend with their mother, Ms A was of the view that the children should see their mother fortnightly and that recommendation has been adopted by the father in his response.

5. In so far as the mother sought that the children see her weekly, progressing to overnight, Ms A did not recommend that that happen. I am reluctant on an interim basis to move to such an arrangement in circumstances where the children’s treating clinical psychologist does not recommend that arrangement.

6. In relation to the amount of time that the children spend with their mother, I adopt the recommendations of Ms A that that time be one day each fortnight. The issue arises as to how much that time should be on each day. The mother asks that that period of time be from 8am to 3pm. The father wants that period of time to be 9am to 1pm.

7. Ms A opined that the current arrangement of the children seeing their mother at 8am was problematic in as much as the children need to set off around 7am and she thought that was too early. I accept that it is more manageable if the children commenced seeing their mother at 9am.

8. In relation to the end time, it seemed common ground that as part of S’s normal routine, he would have a nap at around 1pm. It is not unusual for him to fall asleep on the way home from C Centre in the supervisor’s motor vehicle. At first blush it would seem as if there would not be a great deal of point in S being with his mother if he was sleeping. The mother however is of the view that S would benefit from the experience of having her put him down for a nap and for her to be with him when he woke.

9. The next question to consider is whether the maternal grandparents or a professional supervisor supervise the children’s time with their mother. The father is firmly of the view that the maternal grandparents are not capable of fulfilling that role. He points to a large amount of controversial material to suggest that the relationship between the mother and her parents has at times been significantly compromised. The maternal grandparents vigorously assert that they are properly qualified to protect the children from any relapse that the mother might suffer whilst the children are with her and are being supervised by them. They make the point, and I accept, that the mother has not relapsed when they have been supervising her with the children.

10. In the context of this interim application I do not have to resolve that controversy. That is because I need to assess which of the competing proposals is likely to produce the better outcome for the children. On the one hand the father is prepared to fund the cost of a professional supervision service (I pause to note that Ms A emphasised that it was important that that service provide, as far as it is possible, a consistent person to carry out the supervision). What Ms A says about this is as follows:

    It is my recommendation that the children, when in the care of their mother at this point, continue to have supervision by an independent, objective and child focused carer (supervisor). I’m hesitant to recommend withdrawing supervision in any situation where [the mother] is away from structure of the program.

    As stated above, I also am of the view that a supervisor is not there just for the purpose of scrutiny. I would still recommend the presence of a supervisor in shared access situations with grandparents and [the mother] for the following reasons:

    As stated in the point above, it is quite understandable and would be realistic that [the mother] has challenging days at points through her recovery. Should a supervisor not be present, it places [the mother’s] parents in the role of being supervisor, and removes from them the opportunity to get on with the business, and enjoyment, of being parents and grandparents. Placing them in this position also increases the possibility of tension between parents and their daughter, which would be counterproductive for the children. Relationships are complex, and patterns can take time to change. In addition, under these conditions, when access occurs it is natural that expectations can be high and disappointments possible –, all of which can impact on the emotions in the moment.

    In summary, my perspective is focused on the best interests of the children, and therefore would see it is of value to have supervision in place if access to [the mother] in the maternal grandparent home was decided on. (errors as in original)

11. Based on that opinion, I conclude that it is in the children’s best interests to have a professional supervisor at the maternal grandparents’ home during the period of time when the children are there.

12. The next matter to consider is whether or not a professional supervisor is needed on the weekend when the children will be with their mother at C Centre.

1. If a professional supervisor was not employed on that Sunday, it might be possible to consider an arrangement whereby the maternal grandparents pick the children up from a place close to the father’s home and take them to C Centre and bring them back again, but with the children spending time with their mother at C Centre for four hours, with C Centre providing the supervision.

2. At paragraph 30 of the mother’s affidavit filed 24 May 2013, the mother describes her understanding of the level of supervision at C Centre. She indicates that when the children arrive at the facility they are required to sign in by the staff and be placed on the rolls. She asserts that the facility’s supervisor (who she says is a person named KK on the weekends) will be aware of her location with the children at all times. The mother says that the children and she will continue to be sighted and marked off the roll every hour until they sign out at the completion of the visit. The mother did not file any affidavit from any person in authority at C Centre but was accompanied at court by Ms B who at my invitation gave oral evidence.

3. Ms B described the arrangements at C Centre in terms of supervision. A qualified employee of C Centre keeps a general overview of what is happening during periods of time when children are at C Centre with persons staying there for treatment. There is more intense supervision provided by one of the other residents at Level 3 and it is part of their responsibility to report anything untoward in the behaviour of the mother to the supervising staff member. Senior counsel for the father challenged Ms B in relation to how she described a number of aspects of the mother’s proposed supervision.

4. I accept the mother’s assertion that the risks to the children at C Centre during the day at least are relatively low and that C Centre offers a safe, welcoming and well resourced environment for the children.

5. I also have regard however to the evidence of Ms A who was asked to specifically comment upon the issue of supervision at C Centre. Her comments were as follows:

   As noted, I do not believe that too many changes to current plans are appropriate at this stage. I would think that a further period of time (at least another 6 months) and an opportunity to gain impressions of the children’s management of the visit time would be preferable to continue to assess that they [are] coping well with this arrangement.

   I also think that it is important to note that I would envisage that the role of supervision is far greater than just as [a] monitor of [the mother] and her interactions. It must be kept in mind that the children, who may present initially with enthusiasm and joy at seeing their mother, are also still struggling with their own issues around their experiences. It is also valuable to realise that their behaviour may not consistently be easy – indeed as they start to feel safer with the consistency of the visits, it is possible that they will become more challenging. In addition, as [the mother] progresses through the stages of her treatment, I understand from the report from her worker that the expectations will become more intense for her. This could have an impact on her coping skills from time to time. The presence of a supervisor will undoubtedly offer support to both parties in more challenging and/or fragile moments.

   For the children, a regular supervisor who is a consistent link between home/[the father] and [the mother] and a neutral party is an advantage as well.

6. So again, it is not a matter of me making a determination as to whether or not the supervision of the mother at C Centre is adequate, but rather comparing the supervisory environment offered by C Centre on the one hand with the advantages identified by Ms A of using a professional supervisor (which the father has indicated he will fund) on the other. I accept that there are advantages in continuing with the professional supervisor and I will accordingly make that order.

7. The next issue to consider is given that the children’s time with their mother has increased in frequency, what is the impact of that new arrangement on the existing order in favour of the maternal grandparents. In her written evidence, Ms A responded to that question in the following terms:

   I do firstly acknowledge that it is important for the children to have the opportunity to know their grandparents – both maternal and paternal. In order to facilitate this, in the context of more frequent visits where the children are travelling to [the mother], I would suggest that one potential arrangement would be where the maternal grandparents could be involved in the collection or delivery of the children to (or from) [the mother] at [C Centre], and overlap some of their visit with her. If His Honour Justice Watts agrees that the best current arrangement is to provide an independent supervisor, it may be possible for that supervisor takes some time out to offer them family time in this settling. An alternate arrangement could be that [the mother] shares access with maternal grandparents and supervisor at their home once a month. I would consider this enough moving about for the children at this stage, with all the previous points in mind. (errors as in original)

8. During her oral evidence I explored with Ms A a formulation by which the children see their mother each alternate weekend at C Centre and/or the maternal grandparents’ home and the children having time as currently ordered with their maternal grandparents on one weekend day each four weeks. Ms A was of the opinion that it would be better, instead of having that arrangement, to extend the four hours to six hours on one of the two days in the four week period and to allow the grandparents to have some one to one time with the children in that six hour period.

9. The father resisted that proposal and suggested through senior counsel a number of reasons why it may not be in the children’s best interests and why Ms A may not have thought the proposal through. On reflection however I think that that arrangement is an appropriate one, each fourth weekend, particularly as it is envisaged that shortly this time will be on a Sunday when the children were seeing their mother at the maternal grandparents’ home.

10. I propose to discharge the previous order that I made in favour of the maternal grandparents. Instead in a fortnightly period the following arrangements will be ordered:

    47.1.On the first alternate Sunday in a four weekly cycle the children will spend from 9am to 1pm with their mother at C Centre with a professional supervisor present;

    47.2.On the second alternate Sunday in a four weekly cycle the children will be at the home of the maternal grandparents from 9am to 3pm (or at C Centre if the mother is unable to go to her parents’ property).

11. I do not intend to create any artificial divisions of that time. The mother and the maternal grandparents, can if they choose, be present at all times. I note however that the mother has expressed the view that she would like one to one time with the children (so far as that is possible with the professional supervisor present). It is also my intention that the maternal grandparents have some interaction with the children. Both the mother and her parents seem to be saying that they believe they can work cooperatively with one another and I am happy for them, at this point, to attempt to work out whatever arrangement they think might best suit the children in that six hour period. It might mean that the mother would leave the premises for a period of time or the maternal grandparents would leave the premises for a period of time, but, I am not suggesting they need to, that will be a matter for them to work out. The six hours gives them the flexibility to do so if they wish. The mother can be present at all times if she wishes. The mother can also insist that her parents leave her alone with the children for four hours if she chooses. The independent accommodation on the maternal grandparents’ property would enable that to happen.

12. On the last occasion I had asked the father to file a financial statement so that I could consider in chambers his objection to the making of an order for the appointment of an Independent Children’s Lawyer. That financial statement was filed late and I was unable to consider the matter prior to the listing of this hearing. The father’s financial statement, whilst it discloses a significant weekly discrepancy of income when compared to expenses, shows a healthy capital position. In relation to his expenses, I note that he has very recently committed to an expense of approximately $2,200 per week for rental accommodation. He has also indicated to the court that he will be responsible for the expenses of an ongoing professional supervisor. As I said on the last occasion, it is not automatic that an order will be made for him to pay the costs of an Independent Children’s Lawyer (although I accept that that is more likely than not).

13. Given the likely complexities in this case as the mother’s treatment continues and given the dissatisfaction that the mother and the maternal grandparents currently have with the opinions being expressed by the children’s therapist, Ms A, it is appropriate that an Independent Children’s Lawyer be appointed. 

14. I canvassed the suggestion that the children might be able to travel from a place in close proximity to the father’s home (the father has recently moved but does not want to disclose his current whereabouts) to C Centre and back again (a trip each way of about an hour) and to and from the maternal grandparent’s home (a trip of about ¾ hours each way). That suggestion did not find favour with the maternal grandparents, although the father was prepared to agree to it in the context of reducing the possible hours that the children would be with their mother and the maternal grandparents on one of the two Sundays out of four that they would be with their mother and their maternal grandparents. I do not need to consider the maternal grandparents’ transporting the children further.

15. Within the six month period covered by the orders, the parties can agree in writing to vary the orders I have made and if the parents agree on a change which is opposed by the maternal grandparents, the matter can be relisted before me on 14 days notice.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 13 June 2013.

Associate:  

Date:  13.6.2013