Bostridge and Smallwood

[2017] FamCA 1113

FAMILY COURT OF AUSTRALIA

BOSTRIDGE & SMALLWOOD [2017] FamCA 1113

FAMILY LAW – CHILDREN – Parenting – contravention application withdrawn – interim time spent – supervision

APPLICANT: Mr Bostridge

RESPONDENT: Ms Smallwood

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms S Nicholes

FILE NUMBER: MLC 11328 of 2014

DATE DELIVERED: 8 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A. O’Connell

SOLICITOR FOR THE APPLICANT: R F Legal

COUNSEL FOR THE RESPONDENT: Mr R. Frajsman

SOLICITOR FOR THE RESPONDENT: Taft Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Nicholes Family Law
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr N Eidelson

Orders

IT IS ORDERED THAT:

1.The mother have leave to withdraw her Contravention Application filed 30 May 2017.

2.The pending substantive proceedings which were referred by Senior Registrar FitzGibbon on 22 March 2017 to the list of cases awaiting allocation to a judicial docket be referred to the Case Management Judge for directions this day as to a proposed application by the parties for an expedited hearing.

IT IS ORDERED BY CONSENT THAT:       

3.Paragraph 2 of the Order made on 22 March 2017 be discharged.

4.The father and the mother attend Q Contact Centre at Suburb R and complete any intake assessment and procedure requested, AND IT IS NOTED that the costs of such assessment is $165 for each parent.

5.The mother spend time with the child B (“the child”) born … 2014 at the said contact centre for 2 hours in each fortnight, with all such time to be supervised by an employee of the said service, AND IT IS NOTED that the costs of such supervision is $220 for the 2 hour session.

6.The father and the mother each pay one half of the costs of the said intake assessment and ongoing supervision, being $165 for the intake assessment and $110 each for the ongoing supervision.

7.The mother’s application for leave to make an oral application that Ms F supervise time between the mother and the child on 27 December 2017 and 3 January 2018 in the event that Q Contact Centre at Suburb R is not able to accommodate the family is refused.

8.In the event that Q Contact Centre at Suburb R can accommodate supervised time between the mother and the child on 27 December 2017 or 3 January 2018 or both of those dates the mother spend time with the child at the said contact centre to be supervised by an employee of the contact centre with the parties being equally responsible for the costs of supervision.

9.Subject to any further order of the Court, if one party fails or neglects to attend an appointment for supervised time with Q Contact Centre, the party who fails or neglects to attend the time be solely responsible for the cost of that supervised visit thrown away and that party be at liberty to argue at the final hearing that the other party should be responsible for all of those costs or part thereof.

IT IS FURTHER ORDERED BY THE COURT:

10.That the mother is restrained from bringing a third party, save for her daughter, Ms S, to supervised visits without prior written consent between the parents via solicitor’s letter. If the parents agree for another person to be present, the third party to be vetted by the independent children’s lawyer.

IT IS DIRECTED:

11.That the signed minute of consent orders be marked Exhibit “A” and remain on the Court file.

12.That the minute of orders  made by the Court be marked Exhibit “B” and remain on the Court file.

13.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

IT IS FURTHER ORDERED BY THE COURT:

14.That the interim Application in a Case filed by the mother on 30 May 2017 be otherwise dismissed.

15.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)..

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11328 of 2014

Mr Bostridge

Applicant

And

Ms Smallwood

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me in the judicial duty list.  It is the mother’s contravention application filed on 30 May 2017, her application in a case filed on the same day and the father’s response to an application in a case filed on 23 June 2017.  The matter was originally listed on 28 June 2017 before a Registrar. 

2. The applicant is 38 years’ old, he’s manager, and the mother is 32 years’ old and she is not, to my knowledge, employed.  The proceedings concern the child, who is aged three, and will become 4 years old on 3 January 2014.

3. The mother is the applicant in the contravention proceedings and in the application in a case. Those two applications arise in relation to time spent between her and the child, which is ordered to be supervised.  A dispute arose as to whether the mother could bring her aunt, one Ms J, to time which was otherwise supervised by the paternal grandmother at a play centre in Suburb T. 

4. The parties have, sensibly, adopted a procedure whereby the issue of who may accompany the mother is dealt with separately to the contravention application, which the mother has otherwise agreed to withdraw. That means she can re-file the contravention application if she wishes to, but for the time being we are dealing with the substance of the parenting matter.

5. The substantive proceedings were placed in the list of cases awaiting allocation to a judicial docket by Senior Registrar Fitzgibbon.  They have not yet been reached.  There have been a number of reportable assessments in this matter.  A section 11F report by Ms C, family consultant, dated 20 January 2017, which is long and detailed.  A family report by Ms C dated 31 March 2016 and a report by Dr D of a psychiatric assessment of the father dated 15 July 2015.  There is a psychiatric assessment of the mother dated 20 August 2015 and subject to a supplementary report dated 15 October 2015.  There was also a previous 11F assessment on 17 April 2015. 

6. Today, Mr Eidelson appears on behalf of the independent children’s lawyer, who is Ms Nicholes of Nicholes Family Lawyers. 

7. The parties have agreed to move the supervision arrangements away from a family member and to a fee paying contact service called Q Contact Centre at Suburb R, and it’s anticipated that time between the mother and the child will commence with that service as soon as practicable.

8. The issue on which the parties are not agreed is whether the mother can bring any person, other than her new baby and the child’s sister, to the time. 

9. The mother’s case is that it is appropriate that the child have an ongoing relationship with the maternal family and that she wants her family members to be able to attend from time to time to further that relationship. 

10. The mother was delivered of a baby sister for the child in 2017, that is, U.  U is not the child of the father.  It seems to me that it would be appropriate for the child to be introduced to U. The independent children’s lawyer, through his counsel, expresses some concern about the baby being introduced into the spend time scenario. However, I think that it’s in the interests of the child that the door be left open, so that he may be introduced to U at some stage.  The child knows about U. 

11. Them mother submits that an adult family member should be able to attend her supervised time with the child for the purpose of that family member being able to look after U as and when necessary, so that the mother can interact wholly with the child.  That argument has superficial attraction, but in my view, is not one that I should accept.  If there has to be a person who is solely looking after U whilst the mother is completely involved with the child, then the mother shouldn’t be taking U to the supervised time.  What I envisage is that the mother will take U to a supervised visit on one, maybe two, occasions to allow the child to meet his sister.  Much of the time that the child has with the mother on that occasion will probably be around, and involve, some care of U.  If it doesn’t, well, there really isn’t any need for the baby to be there.  I will not permit the mother to bring persons, other than U, to the supervised time. This restriction remains until further order.  I am satisfied that it is in the child’s best interests.

12. There is one remaining matter, and that is time that the mother wants to have with the child on 27 December to celebrate Christmas and on 3 January to celebrate his fourth Birthday.  It is not known, at this point, whether the contact service, Q Contact Centre, has availability to accommodate the family on those days.  If it does then, in my view, it would be appropriate that the mother have two hours’ time with the child on both of those days. 

13. If Q Contact Centre cannot accommodate the family, the mother seeks that an aunt of hers, Ms F, be responsible for supervising those visits.  They would be visits necessarily away from the Q Contact Centre.  They would take place, according to the mother, at the V Centre.  I’m informed by Ms O’Connell from the bar table that Ms F has previously been approved by the Department of Health and Human Services to act as a supervisor of the mother’s time with the child, and that she is known to the child.  I am not going to accede to the mother’s application to appoint Ms F as an alternative supervisor. 

14. This is an oral application in circumstances where the mother has had an opportunity to put on a formal application of which the father and the independent children’s lawyer could have notice and could have considered and investigated the suitability of Ms F.

15. Adequate notice would also have enabled the independent children’s lawyer to appropriately vet Ms F and to have the usual conversations with Ms F to impress upon her, her obligations as a supervisor.  These are matters that could have been attended to by her on behalf of the mother, but which haven’t been attended to in anticipation of today. 

16. I am not going to entertain the mother’s oral application for Ms F to be supervisor of the time (if any) which will occur on 27 December or 3 January.  I will, however, make an order that if those times are available and be accommodated by Q Contact Centre contact service that that time occur.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 November 2017.

Associate: 

Date:  5 January 2018