BLACK & CAULDWELL
[2009] FMCAfam 1079
•26 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BLACK & CAULDWELL | [2009] FMCAfam 1079 |
| FAMILY LAW – Parenting orders – previous interim orders that child spend supervised time with father and appointment of ICL – ICL makes application to inform supervisors of father’s potential mental health issues – ICL’s role – best interests. |
| Family Law Act 1975, ss.60CA, 60CC, 68L, 68LA, 97, 121 |
| Rice & Asplund (1979) FLC90-725 |
| Applicant: | MR BLACK |
| First Respondent: | MS CAULDWELL |
| File Number: | BRC 6541 of 2008 |
| Judgment of: | Coates FM |
| Hearing date: | 25 September 2009 |
| Date of Last Submission: | 25 September 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 26 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Smith |
| Solicitors for the Applicant: | McPhee Lawyers |
| Counsel for the Respondent: | Ms Carmody |
| Solicitors for the Respondent: | Michael Lynch Family Lawyers |
| Solicitors for the Independent Children’s Lawyer: | Ms Boulton |
ORDERS
That the Orders of Federal Magistrate Spelleken dated 9 July 2009 be varied as follows:-
(a)That they be enlarged to the date of the trial;
(b)That Order 10 be varied to include the words “and that the Independent Children’s Lawyer be at liberty to inform the agency in writing of:
(i)Medical reports indicating that the father may have attention deficit hyperactive disorder and/or obsessive compulsive disorder and that the there are allegations that the father has anger management issues and what supervision is required”.
(c)That a new Order 13 be included:
“That in the event the child becomes distressed to the extent that the supervising nanny is of the belief that it is not in the best interests of the child for the visit to continue then the nanny be at liberty to terminate the visit and return the child to the mother”.
To remove doubt, Order (1)(b) and (1)(c) are authorised pursuant to s.121 of the Family Law Act 1975 and any supervisor being informed of issues pertaining to the father is restrained from identifying the parties or the child in this matter.
IT IS NOTED that publication of this judgment under the pseudonym Black & Cauldwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 6541 of 2008
| MR BLACK |
Applicant
And
| MS CAULDWELL |
First Respondent
REASONS FOR JUDGMENT
On 31 March 2009 I made interim orders by consent for the child [X], born in 2008. Both parties were represented at the time.
Under those orders the child would live with the mother and spend time with the father with a helper present, being a qualified nanny from the [omitted] Nanny Agency.
The time the child would spend with the father under that arrangement was each Saturday and Sunday from 10am to 1pm.
While the orders did not refer to supervision by the nanny, they anticipated that a nanny would be present and assist the father.
Order 12 of the orders made on 31 March 2009 stated that the mother would be given the name of the nanny and be allowed to meet her. That the order was worded to allow the mother to meet the nanny must mean that the mother would be allowed to satisfy herself about that person’s suitability.
On 9 July 2009, although the matter belongs to my docket, Spelleken FM in my absence and after hearing submissions, made amending orders.
By her order 9, she appointed an independent children’s lawyer (“ICL”).
Spelleken FM gave a very specific power to the ICL under her order10, which states:
“That the Independent Child Lawyer is to make contact with the manager of the [omitted] Nanny Agency and inform that person of the extent of the supervision that is required by the Independent Children’s Lawyer (of the father spending time with the child)”.
By her order 11, Spelleken FM made an alternative arrangement for the child to spend time with the father in the absence of a nanny. Order 11 states: “In the event that the services provided by the [omitted] Nanny Agency are ceased at the behest of the manager of that service or it is the view of the Independent Children’s Lawyer that the level of supervision that can be provided by the agency is insufficient then the father shall resume spending time with the child at the Children’s Contact Service at [E] at times suitable to the parties and the contact centre”.
The matter was set for trial on 6 October 2009.
On 11 September 2009 an application was made to vacate the trial date because Dr Barbara Maguire, a psychiatrist retained by the ICL, required further time to compile a second report and to give the ICL, who had only been appointed by Legal Aid Queensland in August, time to attend to all of those duties required under the Family Law Act 1975 in relation to the child’s best interests.
An oral application was also made on 11 September 2009 on behalf of the mother, that the orders made on 9 July 2009 be varied as follows:
a)That the interim orders be enlarged to the date of trial;
b)That Order 10 be varied to include the words “and that the Independent Children’s Lawyer be at liberty to inform the agency; in writing of
i)the father’s diagnosis of ADHD, OCD, symptoms in the diagnostic continuum or Aspergers Disorder, although he does not have that diagnosis and that the mother alleges the father has an anger management issue.”
c)That a new order be included; “that in the event that the child becomes distressed to the extent that the supervising nanny is of the belief that it is not in the best interests of the child for the visit to continue then the nanny be at liberty to terminate the visit and return the child to the mother”.
Obvious from those orders is that the father’s mental health status had become an issue between the time the consent orders were reached and 11 September 2009. Domestic violence allegations had always been an issue as reflected in the consent order I made in March 2009.
The variations sought were opposed by counsel for the father,
Mr Smith, but at no time were the orders made by Spelleken FM otherwise challenged.
Mr Smith submitted that all of the issues in relation to the father’s mental health status were canvassed before Spelleken FM and she made her orders taking into account the following:-
a)Subpoenaed material showing that the father has obsessive compulsive disorder;
b)Past threats by the father to harm himself and/or his child;
c)Dr Maguire’s opposition to the father’s psychiatric health status being made available to a paid supervisor for the child; and
d)That the principle identified in Rice & Asplund (1979) FLC 90-725 was to be applied, that there should be a change in circumstances which would justify the serious step of changing the orders.
It was clearly the father’s case that should the nanny agency be informed of the father’s mental health issues, then the agency’s management may decide to cease the supervision.
When submissions resumed on 25 September 2009, Mr Smith particularised further grounds in opposition to the orders sought, being, in summary:
a) No decision should be made on the application until the reasons of Spelleken FM had been published;
b) A decision to cease the child’s time supervised by a nanny would mean a change in the father’s arrangements;
c) Since a decision had been made, it would be an issue akin to or res judicata;
d) The Court had no power to make a decision akin to an appeal decision; and
e) The orders had only been recently made.
The argument put forward by counsel for the mother, Ms Carmody, can be summarised as follows:
a) Any parenting order needs to be protective of the child under s.60CC(2)(b);
b) When the orders were made, the ICL had not been appointed and so the ICL’s recommendations were not considered; and
c) Spelleken FM made Order 12 as an alternative order and the proposed amendments did not change the effect of the orders.
The ICL, Ms Bolton, agreed with the orders sought by Ms Carmody for the mother. I informed the parties that I took the ICL’s submissions as a separate application from that of Ms Carmody.
Ms Bolton also submitted that she had interpreted the orders narrowly and would seek clarification of the powers she had under the orders, due to s.121 of the Act which limits the publication of family proceedings to third parties. I also raised the issue of whether in fact the ICL may be limited because of the possibility of facing other civil proceedings, such as defamation proceedings, if she informed the nanny of mental health issues pertaining to the father.
I will deal with the Rice v Asplund submission first.
The passage constantly referred to in Rice & Asplund (1979) FLC 90-725 by Her Honour Evett CJ is:
“The principles which in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which would justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman & Hayman {supra) at p75, 680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case”.
There was no submission that the principle of a change in circumstance could not be applied to interim decisions and in my view, it could be.
There can be no definition of what is a change in circumstance, though it could be some issue or some act or some omission which could be considered as changing the circumstances of the arrangements in place by order of the court.
Both Ms Carmody and Ms Bolton submitted that Rice & Asplund refers to living arrangements. Both submissions were that the proposed amendments added procedurally to the orders made but did not change those parts of the orders for the child to spend time with his father.
In one respect that submission is true. The orders asked for do vary the current orders but they do not vary the ordered time the child spends with the father in either the supervised arrangement with the nanny or in a supervised contact centre.
But there appeared to be agreement that the amendments, if made, may have a real effect on the father, because, on being informed of the father’s medical issues, the nanny agency may withdraw supervision, forcing him into a contact centre.
While the father grounds his case on there being no substantial change in circumstances, I raised with the parties whether the ICL’s appointment brought a change in circumstances.
The answer in this particular case lies in the powers of an ICL and the orders made.
The powers of the ICL in this case come from the Act and from the wording of the orders.
Section 68LA(2) of the Act states that the independent children’s lawyer must, and I stress the word must because it is mandatory:
“(2) The independent children's lawyer must:
(a) form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child; and
(b) act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child.”
Section 68LA(3) states the independent children’s lawyer must, and again I stress the word must because it is mandatory, “if satisfied that the adoption of the particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course”.
An independent children’s lawyer is not independent in name only under the Act. The position is so independent that the Act does not make an ICL the child’s lawyer and clearly indicates that an ICL does not have to act on the instructions of the child.
“(5) The independent children's lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c) if a report or other document that relates to the child is to be used in the proceedings:
(i) analyse the report or other document to identify those matters in the report or other document that the independent children's lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii) ensure that those matters are properly drawn to the court's attention; and
(d) endeavour to minimise the trauma to the child associated with the proceedings; and
(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.”
When Spelleken FM made her decision she did not have the independent assistance of an ICL, although once an ICL is appointed the Act anticipates that the ICL may make submissions.
Order 10 and 11 refer to supervision by the ICL, part of Spelleken FM’s consideration of the protective regime under s.60CC(2)(b).
Supervision has a meaning in family law. Butterworth’s Australian Legal Dictionary 1997 defines two terms relating to supervision:
“Supervised access. Visitation under supervision between a non-custodian (usually a parent) and a child. The Family Court has a wide discretion to make orders relating to the welfare of children: (CTH) Family Law Act 1975 ss.67zc, 68F(2)(g). Supervised access or contact can be ordered when this is in the best interests of the child, which is the paramount consideration in making such orders: 65E. The form of the supervision varies from case to case. It may be that an agreed person must be present at all times, that access or contact must only take place in the presence of the custodian or some person nominated by the custodian, or that access must take place under supervision of a Child Welfare Officer: for example In the Marriage of O’Reilly (1977) 3 Fam LR 53; FLC 90-300. The supervisor can be a family member or friend who is acceptable to both parties: In the Marriage of Stirling (1978) 4 Fam LR 342; FLC 90-463. The supervision is usually ordered if there is some doubt as to the capacity of her non-custodial parent to adequately care for the child during access or contact. Supervision has been ordered in cases of very young children; where there is evidence of a drug or alcohol problem (In the Marriage of M (1986) 11 Fam LR 765) See Abuse; Access; Supervision.
Supervision. In family law, the presence of a third person is present during contact between a child and a non-custodian. In making an order for contact the court has the power to place conditions or restrictions on the type of access that a non-custodian may have to a child. The court has a wide discretion in relation to the type of orders it can make: (CTH) Family Law Act 1975 s.65E, 68F(2)(g). Supervision can be for such reasons as the existence of some doubt about the ability of the non-custodian to care for the child because of his or her age or health, or that there has been problems with non-custodian such as drug or alcohol abuse: In the Marriage of O’Reilly (1977) 3 Fam LR 53; FLC 90-300. Supervision can also be ordered because of a perceived risk that the child will be abused in the care of the contact parent: In the Marriage of Bieganski (1993) 16 Fam LR 353”.
While the references refer to old terminology such as custody and contact and to sections of the Act which have been reformed, the meaning of supervision is demonstrated by these entries to the dictionary, which reflect decisions in practice.
The responsibility of the ICL then in this matter is onerous, as it would be even without the consideration of orders 10 and 11. The acceptance of an appointment as an ICL is truly an independent role which also includes the investigation of issues in the evidence, the organisation of expert reports to assist the Court, the issuing of subpoenas in appropriate circumstances and the making of recommendations to the Court.
The ICL has now examined the evidence on the file and other sources of information available to her and she recommends that either the changes are made or that I indicate the width of her power to inform the nanny agency of any matter she believes important to issues affecting the best interests of the child.
A nanny in this case stands in for a supervision centre, because that is how the orders are worded. So, what is a nanny? The Encarta Dictionary, English (UK) defines a nanny as: “somebody employed to care for children. Somebody who is paid to take care of one or more children…”. That is exactly what Orders 10 and 11 envisage, someone who cares for the child, in the context of supervision under the Act.
The mother raises a legitimate concern about the child’s safety. The father raises a legitimate concern about how the child spends time with him. The ICL raises a legitimate concern, independently of the mother and father, about the child’s best interests and her power.
While it may be that the powers of an ICL under the Act cannot always be reconciled with the “some changed circumstance” outlined in Rice & Asplund, I am not satisfied that such is the case in this matter.
The ICL brings about a change in circumstances, by forming, pursuant to s.68LA(2), an independent view, based on the evidence available, as to what is in the best interests of the child. In performing her independent role, she is putting a recommendation to the Court.
The ICL has examined the material, especially medical reports, and has formed her view required by the Act. This view was unavailable to Spelleken FM but has now been transmitted to the Court.
Without having that power how can proper supervision occur when a hired carer may form the view that they are merely assisting a parent who has not had a lot of time to spend with a young child. The subpoenaed material discloses, if it is true because it is untested evidence, that the father declined to take any remedial action or receive help for his psychiatric issues and that must be of concern to the Court.
If the words “some changed circumstance” were read too narrowly, then the change would have to be something relating to the parents or living circumstances or perhaps some tangible event.
If I am wrong in determining that the appointment of the ICL is a change of circumstance, the proposed amendments are not amendments which change the parenting orders – the live with or spend time with arrangements - and so, applying a very strict view that Rice v Asplund applies to such, is not an argument open to the father.
However, so that there is no mistake, because s.60CA speaks of the best interests of the child being the paramount consideration, and the primary consideration in s.60CC(2)(b) relates to protection, there can be no narrow interpretation of the ICL’s powers, as long as they are exercised within her role as outlined in s.68LA, that is, she can form her views on the evidence available.
That s.68LA(3) requires a recommendation to the Court as to the action an ICL believes is required on the evidence does not require an ICL to make an application or recommendation when orders, such as orders
10 and 11 here, exist.
As asked by the parties, I read the reports of psychiatrists,
Doctors W and G, and it becomes apparent as to why Spelleken FM made orders as she did. Dr W stated that the father has traits of Asperger’s disorder, such as attention deficit hyperactive disorder and obsessive compulsive disorder. He reported that the father had thoughts of harming the child. Dr G reported the father’s obsessional thoughts concerning violence and losing control, although he stated this did not independently predict a violent outburst. There is other material indicating that these issues have not or may not have been addressed. The ICL retained psychiatrist Dr Barbara Maguire, to prepare a report for this matter.
The ICL stands in a different position to the parties, in that s.68LA(5)(c) specifically states that the ICL is to analyse any report and identify matters considered “to be the most significant ones for determining what is in the best interests of the child”. The best interests consideration by the ICL coincides and supports the Court’s duty under s.60CA where the best interests of the child is the paramount consideration. In my opinion, the primacy of the protective regime set out in s.60CC(2)(b) is not negatived by the beneficial relationship regime laid out in s.60CC(2)(a), because the object of the Act set out at s.60B states that best interests are met by ensuring that a child has the benefit of a meaningful relationship with both parents, but only to the extent consistent with the child’s best interests. Until the father’s mental health status is assessed and a decision made on the evidence, orders were put into place by Spelleken FM to ensure the child’s safety, that is, the child’s best interests. The only change is that now the independent officer, the ICL, has had opportunity to assist the Court and that was anticipated by Spelleken FM because of the alternative orders she made for the child to spend time with the father.
On that basis, I would state the ICL has the power to include in the term extent of the supervision stated in order 9 the power to inform the nanny, who is there to assist with safety supervision, of the father’s mental health status referred to in medical reports of
Psychiatrists W and G in Exhibit 1, that determinations of such had not been made by the Court on the evidence and, because of the wording, how supervision should be carried out.
However, there is no harm in inserting the proposed amendments, so that the nanny may know that the ICL is performing a duty pursuant to an order of the Court and it prevents legal actions such as defamation proceedings being launched against the ICL.
Further, and again to ensure there is no mistake, the information may be transmitted to the agency pursuant to s.121 of the Act, which allows for publication. As a safeguard, the agency and its employees cannot transmit the material to others. I should also state that the agency staff members are very probably not trained to deal with these issues and could potentially claim that they should have been informed, which may again open an avenue for legal proceedings against the ICL in negligence.
The passing of such information would be entirely appropriate in terms of the protective regime the Act sets out in s.60CA and s.60CC(2)(b) and in the ICL’s powers exercised in the best interests of the child stated in s.68LA.
In making such orders, I am aware that the father states he would be denied natural justice by not having the reasons for the orders of Spelleken FM. The difficulty with the father’s position is that he had lawyers present in court who argued his position which resulted in the orders being made, so he knows what was submitted and was given opportunity to make those submissions and does not otherwise challenge the appropriateness Spelleken FM’s orders. The reasons of Spelleken FM could not refer to any future submission by an ICL, allowed under the Act, because at that stage the ICL had not been appointed by Legal Aid. Further, the amendments also do not change the orders for the child to spend time with the father. Even if he was denied natural justice, protection considerations for the child become the best interests decision as the paramount consideration, a matter taken into account by Spelleken FM and orders made accordingly.
A submission was put that perhaps I could intercede with regard to reasons. I cannot.
I need to deal with Mr Smith’s other submissions.
Spelleken FM considered the magnitude of the risk to the child and the possibilities and made the orders that she did. I am not changing the orders she put into place, except to clarify that information to be transmitted by the ICL to the nanny agency, if the ICL deems such as necessary.
As to the submission of res judicata, as interim decisions only had been made, this matter had never been finally dealt with or fully dealt with in that the ICL had not at that stage made submissions, open to her under the Act. I dismiss that argument.
As to the submission that I could not make a decision which effectively appealed the original orders, I agree. However, the orders made by Spelleken FM have not been changed in terms of the child’s time with the father. What has changed is that the powers of the ICL have been explained so that there can be no misunderstanding of her role. Further, because I view that the ICL’s appointment is a change in circumstances, I am not exercising an appeal power but I am exercising that power outlined in Rice & Asplund, which would allow a change in orders. Again I point out I am not changing the substantive orders.
As to the submission that the orders were only recently made, I accept that, but also that Spelleken FM had in mind that an ICL may make recommendations, and that is why she made alternative arrangements for the child’s time with the father at a contact centre.
Dr Maguire did not make a recommendation that the “nanny” agency should not be told about the father’s conditions. She merely raised a privacy issue and I have now considered that.
Mr Smith for the father says nothing has occurred in five months but that is irrelevant because:
a) Time as such cannot be used as a predictive reference;
b) The substantial change which in my opinion occurred when the ICL was appointed and her subsequent recommendation pursuant to her powers under the Act; or in the alternative,
c) The orders for the child to spend time with the father have not changed, nor have the supervision components of the orders, which have merely been interpreted.
I will make the orders sought, however, I will change part of the wording into plain language.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Coates FM
Associate: T Lewis
Date: 26 October 2009
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