Bradley and Van Veen

[2014] FamCA 15

FAMILY COURT OF AUSTRALIA

BRADLEY & VAN VEEN [2014] FamCA 15

FAMILY LAW – CHILDREN – spend time with – remove supervision

Family Law Act 1975 (Cth) – s 60CC
APPLICANT:	Mr Bradley

RESPONDENT: Ms Van Veen

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4961 of 2007

DATE DELIVERED: 10 January 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Berman J

HEARING DATE: 10 January 2014

REPRESENTATION

THE APPLICANT:	In Person
SOLICITOR FOR THE RESPONDENT:	Gilbert & Partners

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. The order made on 25 September 2012 be discharged.

2. The father spend time with the child S born … October 2004 on Saturday 1 February 2014 from 10:00am to 6:00pm and each sixth (6^th) Saturday thereafter.

3. Handover shall occur outside of the Suburb B Police Station or such other place as the parties may agree.

4. 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 Fat Sheet attached hereto and these particulars are included in these orders.

5. All applications for final orders be adjourned for hearing before the Honourable Justice Berman at 10:00am on Monday 2 June 2014 as a five (5) day matter and that the evidence-in-chief of all witnesses be given by affidavit.

6. The matter be listed for mention before the Honourable Justice Berman at 9:15am on Monday 26 May 2014.

7. By 4:00pm on Friday 7 March 2014 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought;

   (b)the affidavits of evidence-in-chief of all witnesses, including the applicant, relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence-in-chief).

8. The applicant pay all setting down and trial fees by 4:00pm on Friday
   2 May 2014.

9. By 4:00pm on Thursday 24 April 2014 the respondent file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought;

   (b)the affidavits of evidence-in-chief of all witnesses, including the respondent, relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence-in-chief).

10. By 4:00pm on Friday 2 May 2014 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

11. By 4:00pm on Friday 2 May 2014 the Independent Children’s Lawyer file and serve upon all other parties any affidavit material relied upon.

12. No party file any further material other than as provided by these orders without leave of the Court.

13. Prior to the commencement of the trial the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

14. Pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties and the child attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Adelaide Registry for the purposes of the preparation of a Family Assessment Report with such Report to be completed and released by Friday 9 May 2014.

15. The family consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

16. All parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file and the registrar shall be satisfied as to the relevance of the requested subpoenae upon the certification of the party’s lawyer.

17. All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

18. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:

    (a)the Court may relist the matter requiring the parties to justify why it should not be taken out of the list; and

    (b)the party who has complied may immediately thereafter file an Application in a Case supported by an affidavit seeking for the matter to proceed on an undefended basis.

19. The practitioners for the parties file and serve electronically to …@familycourt.gov.au by 4:00pm on Wednesday 28 May 2014 the following:

    (a)       a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)       a bullet-point summary of argument in relation to the issues in dispute.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bradley & Van Veen 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 ADELAIDE

FILE NUMBER:  ADC 4961 of 2007

Mr Bradley

Applicant

And

Ms Van Veen

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This matter was last before me on 18 December 2013, because of an adjourned earlier hearing wherein it was hoped that there would be by reason of the parties’ attendance at mediation, a resolution to the proceedings.

2. The parties have not been able to resolve the matter, and on the last occasion the court was advised that a further problem had arisen, namely that the supervisor, Ms C, had indicated that she was no longer able, or prepared, to undertake the supervision, which as far as she was concerned, was once every six weeks.  There is no criticism of Ms C’s position about that.  The history of the matter dating back to as early as 2009, put in place supervision because of circumstances that affected the father’s relationship with his partners, who were from time to time, supervisors.  It ultimately resulted in Ms C being the only supervisor, and to the extent that she was able to assist the parties for the period that she did, it was to her credit, and to the significant advantage of the parties, and of course, the child S, (“the child”).

3. As a result of the matter being the subject of possible agreement when the proceedings came before me for a trial listing, I did not make orders in terms of any trial directions.  Now that there is no agreement between the parties clearly that needs to be done.  Of course the issue is what is to occur in terms of the interim arrangements between now and the time this matter reaches trial, or at the very least, the time that judgment is delivered.  I have canvassed with the parties how they would wish the matter to proceed going forward.  There are two options, the first being that I simply retain the matter in my docket, and I have indicated to the parties that I am prepared to make trial directions which would see the matter being listed as a primary matter in the week commencing 2 June 2014.  The alternative option is that the matter be referred back to Registrar Paxton, and the registrar would then be able to ascertain whether this matter could be reached at an earlier stage in the docket of her Honour Justice Dawe.

4. Ms Gilbert for the mother, Mr Bradley, (“the father”) in person, have both indicated that they would wish the former option, namely that I simply proceed to list the matter for hearing in the week commencing 2 June 2014.  Whilst that appears to be a significant distance away, in reality, given that there would be the need for preparation of a s 65G(2) Family Assessment Report, and given that that is not likely to be able to start until March 2014, and the usual timeframe is about three months, in all probability the timing will be appropriate.  It will also give the parties, and in particular the father who is unrepresented and continues to be unrepresented, a reasonable opportunity to prepare his case.

5. For those reasons I propose to list the matter for hearing in June 2014.

6. There is however a difficulty that has arisen this morning by the non-attendance of the Independent Children’s Lawyer (“the ICL”).  There is no misunderstanding or lack of clarity in the order that I made on 18 December 2013, that this matter was listed before me at 9:00am on 10 January 2014, with one hour allowed.  The reason that an hour was allowed was because it was intended that I would hear an oral application by the father, wherein he would be seeking a continuation of time that he spends with the child, but that he would be seeking that the condition hitherto imposed on his time, namely one of supervision, be discharged.  It is obviously an important matter, and it is an important matter in terms of how each of the parties proposes that the final hearing be conducted, and I will come back to that in a moment.

7. It is also important to note that on the last occasion Mr Eid of counsel appeared for the ICL.  Whilst it was not the obligation of Ms Gilbert to undertake any inquiry as to why there was no attendance by the ICL, or by counsel representing the ICL, nonetheless she generously indicated to the court that she would make the necessary phone calls, and she did.  The court is grateful for the efforts that she has made this morning in making contact with, I think,

   
   

   Mr Eid of counsel.  Whilst the court cannot possibly know the circumstances of Mr Eid it would appear that he has neglected to attend, it would appear that he had received instructions to attend but demonstrably he is not here.

8. An issue then arose as to whether the matter should proceed in his absence.  Obviously it is a significant step where an ICL has previously been involved in the matter, and indeed has had a long involvement with the matter going back to the early years, even prior to the consent order made on 9 August 2009 where the ICL was then discharged, but then reappointed once the proceedings were refiled.

9. In speaking to the father first and then to Ms Gilbert, who sought instructions from her client, both Ms Gilbert and the father urged me to proceed with the matter in the absence of the ICL.  I can indicate that I was prepared to do that, but if there had been strong opposition from either Ms Gilbert or the father then reluctantly I would have declined to do so.  In any event, there was no disagreement between Ms Gilbert and the father in respect of the matter proceeding before me, and it did.

10. I heard lengthy submissions from the father and Ms Gilbert by reference to a number of documents that are comprised on the court record.

11. I should also note that part of the order that I made on 18 December 2013 provided for each of the parties to have an opportunity to file further affidavit material, limited in number to two, and limited in size to 10 pages.  Each of the parties has sought to take up that opportunity and it is useful I think to record that an affidavit was filed on behalf of the mother from Ms C on 6 January 2014, which sets out her observations of the interaction between the father and the child over a reasonable period of time.  I have had regard to that document. Ms Gilbert has also filed an affidavit the purpose of which is to annexe a Report from Dr D dated 6 November 2013, and by coincidence the father has also filed an affidavit annexing the same Report.  I have had regard to that Report.

12. The father filed an affidavit of 8 January 2014, and whilst that affidavit does not necessarily take the matter any further, I have reference to it because as part of my order of 18 December 2013 I gave directions that the parties were to present to me orders that they seek, and paragraphs 8, 9 and 10 of that affidavit I take as in effect the basis of an oral application by the father in relation to the time that he would wish to spend with the child, and the circumstances by which that time would be spent.  Given that the issue was well understood in terms of matters of supervision, I do not think that the mother was taken by surprise in respect of the orders that the father seeks.

13. It is worthwhile highlighting those orders because that really formed the basis upon which submissions were made today.

14. The father seeks that he spend time with the child each sixth Saturday on an unsupervised basis of 10 hours duration on Saturday, until final orders are made.  He seeks that the time start at 10:00am and conclude at 8:00pm.  Ms Gilbert in her submission did not indicate that there was any difficulty as far as the mother was concerned in terms of the frequency, that is, once every six weeks, nor indeed that it is a period of some 10 hours, but the issue rests squarely with supervision.

15. The balance of the orders the father seeks are not really matters about which I am terribly concerned in terms of any pick-up or handover place.  That will be as per the current arrangements, and I will find out later what they are, but I will give the parties an opportunity, if they are able to reach agreement as to any alternate position, and I will make provision for that.

16. The issue is well joined.

17. The story however starts I think with the Amended Application filed by the father on 3 September 2013, and in that document I refer to the orders that he seeks which is, whilst described as a minimum, he seeks an order by way of final orders that the child spend one weekend every six weeks with his father, but from Friday at 5:30pm until Sunday at 6:30pm with that time to be extended if it is a long weekend, and that the child also spend up to half of his school holidays with the father.  There are a range of other extensive orders but in a general sense in terms of time arrangements, that is the extent of it.

18. The mother’s position however is quite different.  The mother filed an Amended Response on 30 September 2013 and in that document she sought an order that the father’s application be dismissed, but that the orders that should continue in place are the orders that were made on 6 August 2009 by his Honour Justice Strickland.  In looking at those orders they were orders made by consent.  The father was represented by Ms Leigh of counsel, the mother was represented by Ms Du Barry of counsel and the ICL was represented by

    
    

    Mrs West of counsel.  Those orders provided that the child spend time with the father on each alternate Sunday from 10:00am to 5:30pm until the child attains the age of five years, when the time shall conclude at 6:00pm and that was to commence on 9 August 2009.

19. Interestingly enough the time that the father seeks now is not dissimilar, although it is a little more extended in terms of the hours per day.  The mother’s position is that by way of final orders she would agree to an order made on an each alternate Sunday basis, whereas the father’s position is to spend time with the child each sixth Saturday.

20. If that were the end of the story, frankly there is not much difference between the presentation of the parties and at least the interim arrangements would have been capable of resolution.  However, by way of those orders of 6 August 2009, the father agreed that his time with the child at all times be supervised, then by Ms H.  As is immediately apparent there have been difficulties with the supervisor and I am satisfied that the circumstances have now been reached where the father is not going to easily find a supervisor, and the result of that will be this, that in the absence of a supervisor, unless orders are made to the contrary, the father will not spend time with the child, or at least that is a reasonable apprehension.

21. The matter has been the subject of very significant judicial consideration.  I go back to the orders of his Honour Justice Burr, as the then was, made on

    
    

    6 September 2011 and there are a number of matters that I note.  The first is order 10 provided that there be a psychiatric report prepared, order 11 noted that there were no allegations of sexual abuse or significant physical abuse which would see the matter remaining in the Magellan list and it was so removed, and order 12 provided that the father have supervised time at the F Contact Centre.

22. Two important matters arose from that.  The first, not necessarily in time, was that the father did have supervised time under the supervision of Relationships Australia and a Report of those observations is to be found as an annexure to the affidavit of Ms J filed 20 December 2011.  I do not propose to go through each and every one of those occasions.  The Report is a clear document.  I am uncertain whether there is any significant dispute about the observations as recorded, but it would seem the Report has been used in these proceedings, and there has not been any issue where the observations were the subject of significant objection, save and except that today Ms Gilbert raises with me, very properly, that whilst the court may form a view that the Report makes observations of very favourable interaction between the child and his father, and indeed spontaneous delight by the child about spending time with his father, the issue is that the period was for two hours only and the father would have known that his time with the child was under observation, and he then had to be on his best behaviour.  I have no way of knowing whether that is right or wrong, but I accept obviously that the parameter of the interaction was one of supervision and was one of limited duration. 

23. Of course, what impacts upon me, as much as the concerns that the mother might have about the presentation of the father, is the observation of the manner in which the child appears to have enjoyed his time with his father.  That becomes important because part of the presentation of the mother’s case today is the affidavit I have referred to of Ms C.  She in effect says that the observations have not been as favourable to the father in terms of his interaction with the child as were the observations of Relationships Australia.  That is not to suggest that Ms C says that anything inappropriate occurred, or anything harmful occurred, or that there was any risk, unacceptable or otherwise, in respect of the time that the father spent with the child, but rather that the father in the words of Ms C, appeared to “lack insight” into what activities might interest the child, and the manner in which the father could conduct himself was such that it, and these are my words not Ms C’s, was not particularly child focussed.

24. There was also an issue raised as to the involvement and interaction of other persons, in particular the father’s son Mr K aged 27 years.

25. Obviously it is a matter of value judgment whether or not the activities as arranged by the father when dealing with the child were matters that were of interest to the child or were matters which rendered the child bored by the arrangements, I am not able to say.  On an interim basis frankly I am concerned about whether in a general sense the father interacted appropriately with the child, and I find that even at the high watermark of Ms C’s affidavit there is still significant benefit in the relationship between the father and the child, and I am of the view that the issue today is not as to the extent or frequency of the interaction but rather whether it should be supervised.  That is, the supervision is not there to ensure that an enjoyable time is had by all.  The supervision is there to ensure that the father behaves appropriately and/or that the child does not become unduly distressed.  It may be that those matters, that is what the father does with the child, become a relevant determination in terms of the final orders, noting that the father seeks each alternate weekend with overnight periods, it may be that that becomes a relevant issue in any determination of those matters, but I do not find it a relevant issue in terms of whether or not there should be supervision.

1. That issue of supervision whilst clearly being a matter of concern to the mother, and to some extent an acceptance by the father is evidenced by the final orders made by his Honour Justice Strickland.  As a result however of orders made by his Honour Justice Burr, there were psychiatric reports prepared by Dr E, they are contained as annexures to the affidavit of Ms J of 27 October 2011, they were psychiatric reports prepared in respect of both parties.  They are extensive reports and Dr E appears to have considered a number of documents that comprise the court record.

2. It is difficult on an interim hearing to do justice obviously to the full extent and colour of the Report, but perhaps the summary which leads us to where we are today is that which is under the heading of “Parenting Issues” at 22.2 being page 32 of 34 of the Report of Dr E of 19 October 2011, where he says as follows:

   Given that [the father] is suffering from a Delusional Disorder and given that there is documentary evidence that he has previously assaulted [Ms I] and his daughter, [M] and given that [Ms N’s] children have accused
   [the father] of treating them inappropriately and given that [the father] is currently delusional [the father] should not have unsupervised access with his son, [S].  I am concerned about the effect [the father] may have upon his son, [S], however if he receives treatment from a psychiatrist and if he is closely supervised it probably is appropriate for him to continue to have supervised contact with his son, [S].

   …

   Given that [the father] is suffering from a Delusional Disorder and given the evidence regarding his poor anger management and lack of impulse control in the past I would recommend he see a psychiatrist for psychotherapy and for psychotropic medication (including an antipsychotic agent).

   …

   If [the father] makes good progress with his psychiatric treatment it is possible that at some point in the future he may be well enough to have unsupervised access/time with his son but this should be reviewed in the future by an independent psychiatrist.

3. The father has railed against the report of Dr E and it forms a significant part of his presentation. 

4. Before me today however, is a Report of Dr D dated 6 November 2013 which is a Report consequent upon a referral from Dr O, with

   
   

   Dr D seeing the father on 1 November 2013.  It is important I think to read the opening statement which is as follows:

   It was clear at the outset of the interview that the [father] doe [sic] snot [sic] believe that he has any significant psychological problems, certainly no different to the average person, and as such does not want psychiatric care, but rather, support of his position to persuade the Court to have more time with his son.

5. The Report is a relatively lengthy document and the opinion of Dr D is following a review by Dr D of the Public Health Service Computer Community Register.  Dr D was satisfied that in July of 2007 there was a diagnosis of persistent delusional disorder.  I raise that irrespective of what

   
   

   the father says about it.  I think I need and must work from the objective evidence that I have before me.  Dr D goes on to say this:

   Apparently following a series of stresses he declared his property an independent free state.  It was reported that he was setting booby traps for council works.  It was reported that there were long term issues with authority figures.  It was reported he was dictating terms of contact with other siblings with children.  Although I did not see a copy of the admission summary, there was a significant reduction in the HONOS assessment, at admission the score was 36 and six days later (presumably at discharge) this had significantly dropped to 13.

   Whilst the facts of what happened in 2007 are disputed, it is likely that as a result of stress he had become briefly psychotic in 2007.  Thereafter he has remained apparently clam [sic] and composed, but pursuing his unusual, but not abnormal, ideas.  I saw no signs that he was mentally ill at the present time, and as such, saw no reason why he could not have unsupervised regular contact with his son.

6. Obviously it is a matter for the court to determine whether, and what, should happen.

7. I am of the view that there is a demonstrably good and proper relationship between the child and his father.  That would seem to be so if for no other reason than the mother supports the maintenance of the relationship by the very orders that she seeks.  The difficulty however is one of supervision.  As I have already noted his Honour Justice Burr’s order of 6 September 2011 did not note that there was significant risk of sexual abuse or serious physical abuse, they were not features in respect of the presentation of the matter, and in any event I consider that matters have significantly moved on.

8. It is difficult for the court to contemplate ongoing supervision.  If this was a case where the issue of supervision had only arisen between now and the time this matter is to be heard namely, in June 2014, perhaps the decision would be significantly easier.  But this is a case where supervision has been in place since at least August 2009 and I am satisfied, as I have already said, that the parties, or at least the father has run out of reasonable options in respect of supervision.  It is not the position of the Full Court of the Family Court of Australia that, unless by consent, orders should be made that would see interaction between a parent and a child the subject of a permanent order of supervision.  That is simply to indicate that there is significant difficulty in ensuring that a supervisor is able to be reliably involved, and the history of this matter with the partners of the father, and with Ms C, amply support the truth of that statement.

9. The evidence before me would suggest that the father has significantly recovered from his presentation to Dr E in 2011.  Dr D’s report, whilst a report that it is true does not bring to account all of the documents on the court record as Dr E did, was nonetheless still a comprehensive report as to the functioning of the father at the time that he saw him, and Dr D was not completely immune to the earlier history because of course he had recourse to the Community Health Records in 2007.  That is, he had a benchmark, and indeed he made certain remarks that indicate that he was clearly aware of the matters relating to the presentation of the father.

10. I also need to have regard to the provisions of the Family Law Act 1975 (Cth) (“the Act”), and in particular those matters in respect of s 60CC.

11. I am satisfied that s 60CC(2)(a) should apply and should have paramount consideration, namely the benefit of the child having a meaningful relationship with both of the child’s parents.  In this case a meaningful relationship in particular with the father in circumstances where if an order is not made removing the supervision, there will in fact be no relationship between

    
    

    the father and the child.

12. I need to bring to account s 60CC(2)(b), namely the need to protect the child from physical and psychological harm.  There is no issue in relation to physical harm, there is none alleged.  The issue is psychological harm and that is the mother is concerned that the father will want to involve the child in his view of the history of the matter, in particular his relationship with the child’s mother, his attitude towards the child’s mother, and matters relating to the psychiatric diagnosis in 2007 and the circumstances surrounding that.  That of course is a matter for the father as to what he does with all of those thoughts, but in circumstances where Dr D’s report suggests that the father presents properly, and in a manner in which there is no risk in respect of unsupervised time, I am prepared to accept that the advantages to the child in a meaningful relationship are matters that I must give more weight to than the issue of psychological harm.  I also take into account that the child is now nine years of age, he will be 10 in 2014, and that the period of time that we are talking about is a period of once every six weeks with the likelihood that there will only be, relatively speaking, a few periods between now and the time of trial.

13. There will also be what I might describe as a check and a balance in respect of the matter, because as part of the trial directions I will order that there be a

    
    

    s 62G(2) Report. This child is able to indicate clearly what issues might and might not arise in terms of the interaction between he and his father, and

    
    

    the father understands that he needs to be child focussed and not proceedings focussed.  That is a matter for the father but at this stage I am satisfied that the risks in respect of psychological harm are minimal, but that the significant risk would be to a disruption to the relationship between the father and the chid, and that must be my primary focus.

14. I am satisfied in respect of s 60CC(3)(a) that the child would wish to spend time with his father.

15. I am satisfied in respect of s 60CC(3)(b) that there is a good and proper relationship between the father and the child, and that is demonstrably set out in the Observed Interaction Report by Relationships Australia and to the extent that the mother recognises, albeit with hesitation and condition, that there needs to be an ongoing relationship between the father and the child.  That is an important matter under s 60CC(3)(c) and (ca).

16. With regard to s 60CC(3)(d) I find that there is not likely to be any significant change to the circumstances in this sense, the child is already used to time with his father every six weeks and indeed the father indicates that that is a time he thinks the child is able to deal with in the circumstances.

17. I find with some hesitation that the father has the capacity to properly parent the child for the relatively limited time that he seeks.

18. I do not consider that there are any issues relating to family violence, family violence orders or any other matter that is likely to lead to the institution of further proceedings.

19. Obviously there is uncertainty about how these matters will go.  The mother is necessarily concerned, and on her case, with some justification.  The father has no doubt and urges me to make an order which would see supervision not being a part of ongoing orders.

20. On balance I find that I should make an order which would see the child spend time with his father but absent condition of supervision.

I certify that the preceding forty five (45) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Berman delivered on

10 January 2014.

Associate:     

Date:              20 January 2014