Casey and Carnegie and Anor

[2011] FamCA 736

FAMILY COURT OF AUSTRALIA

CASEY & CARNEGIE & ANOR [2011] FamCA 736

FAMILY LAW – CHILDREN – spend time with supervised  - INJUNCTION – restraint from discussing proceedings

Family Law Act 1975(Cth)

APPLICANT: Mr Casey

1ST RESPONDENT: Ms Carnegie

2^ND RESPONDENT Ms B

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Parramatta

FILE NUMBER: PAC 1958 of 2011

DATE DELIVERED: 6 September 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 5 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kenny

SOLICITOR FOR THE APPLICANT: Longman Hill solicitors

COUNSEL FOR THE 1^ST RESPONDENT: Mr Batey

SOLICITOR FOR THE 1^ST RESPONDENT: Conditsis & Associates

COUNSEL FOR THE 2^ND RESPONDENT Ms Veloskey

SOLICITOR FOR THE 2^ND RESPONDENT Campbell Paton & Taylor

INDEPENDENT CHLDREN’S LAWYER Legal Aid NSW, Parramatta Office

Orders

IT IS NOTED

1. That subject to the availability of the E facility on the D region or some other supervision arrangement as agreed between the father and Ms Carnegie, the father is to have time with the child C born … 2004 once each fortnight for such times as that facility or agreement allows.

IT IS ORDERED

1. By consent (without admissions by the father) orders are made in terms of paragraphs 5 and 6 of the document titled Short Minute of Orders marked Exhibit 1 as set out hereunder:

“5.That the Father be and hereby is restrained from publishing reference to these proceedings or to the child C or any party to these proceedings on his Facebook or any other social or other media.

6.That the Father be and hereby is restrained from discussing these proceedings with the child C, or in his presence and do all things necessary to prevent any other person from discussing these proceedings in the presence or the hearing of the child.”

1. That an order be made in terms of paragraph 1 of Exhibit 1 as set out hereunder:

“1.That order 9 of the Orders made 7 June, 2011 be herewith varied to exclude the weekend on which contact takes place.”

1. That leave be granted to the parties to make oral application for the orders in terms of Exhibit 1 and in terms of the father’s Minute of Orders Sought marked Exhibit 2 and those applications are otherwise dismissed.

1. That there be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Casey & Carnegie 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 SYDNEY

FILE NUMBER: PAC 1958 of 2011

Mr Casey

Applicant

And

Ms Carnegie

Respondent
And

Ms B

Respondent

REASONS FOR JUDGMENT

1. These are interim parenting proceedings.  This is a Parramatta case, which was before me on 6 June 2011, resulting in judgment being given on 7 June 2011, dealing with the living arrangements for a child, the child, who is seven years of age.  The effect of those orders was that the child came to live with his mother’s cousin in the D Region; that the father was to have supervised time with the child; and the mother was to have time with the child by arrangement with her cousin.  The mother’s cousin is Ms Carnegie.

2. On that date, there was an issue about whether there could be some additional supervised time facilitated by a supervisor other than a body corporate such as a contact centre. I made a comment in the course of reasons for judgment that it appeared that the father’s mother was a person independent of him. That was because of evidence that at one point she had reported the father to the Department of Community Services, as it was then called, in respect of his care of the child.

3. As a result of that comment and the failure of settlement discussions between the parties, the matter was relisted. It came back before me, firstly, on 8 August 2011 in Parramatta, following effect being given to an order that the child be represented. The matter was then adjourned to yesterday in Sydney. There was some miscommunication with counsel for the father understanding that the matter was listed at Parramatta. There were other matters in the list, and ultimately the matter came before me, late yesterday, perhaps about 4 o’clock.

4. As it transpires, and as often happens, there are a number of issues.  Firstly, the father seeks orders in terms of a minute of orders whereby the paternal grandmother, Ms A Casey, be declared to be an acceptable person to supervise his time with the child. He also seeks that he be able to spend time with the child no less than once a fortnight. That is proposed to be an alternating arrangement. Once every four weeks the father would travel to the D Region and spend time with the child at E faclility, or such other place or supervisor as agreed between the parties, commencing 4 September 2011. On the intervening fortnights time would be spent at the home of the paternal grandmother at R Town, from 12 noon on Saturday until 12 noon on Sunday.

5. Orders are sought by Ms Carnegie.  Firstly, that order 9 of the orders made on 7 June 2011 be varied to exclude the weekend on which contact takes place.  That relates to telephone communication. Otherwise, she seeks that the orders made on 7 June be confirmed and that the orders sought by the father be dismissed. She seeks that within 48 hours the father remove all photographs of the child from his Facebook page and from any other social media on which the father has posted photographs of the child.  Next, that the father be and hereby is restrained from publishing reference to these proceedings or to the child or any party to these proceedings on his Facebook or any other social or other media. Next, that the father be and hereby is restrained from discussing these proceedings with the child or in his presence and to do all things to prevent any other person from discussing these proceedings in the presence or hearing of the child. Next, that the father pay the costs of the use by the parties of the D Region Children’s Contact Service run by E Facility.  And finally, that the father pay the costs of Ms Carnegie of this application. 

6. No formal orders are sought on behalf of the mother, although I understand that, from her counsel yesterday, that she also seeks an order for costs. 

7. No formal order is sought on behalf of the child, although Mr Naidovski was present in Court yesterday and I understand that in broad terms he supports the orders sought on behalf of Ms Carnegie.

8. A raft of material was filed in relation to these issues.  I have an affidavit from the mother, an affidavit from the father, an affidavit from each of the Carnegies, Ms and Mr, and then affidavits, filed in the Carnegies’ case, of Ms F and Mr G.

9. Dealing with those affidavits, the effect of the affidavits of Ms F and Mr G is that, in the past, they witnessed violent, neglectful, dangerous, irrational conduct by the father directly affecting the child.  Ms F is 33 years of age. She was a neighbour and friend of the parents between 2003 and 2006. She has had little contact with them since. As neighbours, they were close friends; palings were removed from their adjoining fence, and they were in and out of each other’s houses.

10. She says that she had the child at her house as often as she could, and often she collected the child and had him for the weekend. Therefore her evidence relates to the child from when he was born until he was about two years of age. She deposes to the child being left for long periods of time in a cot; the father throwing the baby violently into his cot and closing the door and leaving him there. She says that when he was able to climb out of his cot, the father built a cage, so that the child could not get climb out. She says that the child was left by the parents in wet and soiled nappies. She deposes to the effect that when the father’s older children came home from school they would try and get the child out of the cot and the father would yell at them and tell them to leave him there.

11. On one occasion, when Ms F offered to care for the child while the mother and the two older children were out delivKg pamphlets for three hours, the father yelled at her, “You’re not taking [the child],” and punched a hole in the wall, she says, beside her face. She took the child away, and an hour later the father acted friendly and as if nothing had happened. She says that on many occasions when the mother and the older children were delivKg pamphlets, she would find the child in soiled clothes, urine and faeces soaked through his nappy into his clothes because the father had not changed him.

12. Ms F gives horrifying details about conduct by the father. She observed the father, when he was angry, changing personality, yelling and screaming and hitting the children. She saw him throw things, destroy things, punch holes in the walls and drive off wildly. She says that these rages would last from 30 minutes to up to four hours, and the older children were made to clean up things that were broken during his rage.  On one occasion she found the child left in a car, in the hot sun, with the windows almost up. She says that the boy vomited and drank bottles of water in two hours, when she finally got him out of the car.

13. Ms F deposes to H self-harming while she lived in the household, cutting her wrists and thighs. When Ms F was visiting in the evening she saw Mr Casey – that is the father – go into their rooms and wake up J and K after they were asleep for the night and start screaming at them.  Sometimes he just threw cold water on them. He woke them up to do something for him, like making him a sandwich or to clean something. She reports that he had fights with the neighbourhood kids.  She said she did not report any of this to the department or anybody else as it did not occur to her to do so. Ms F says that the only men in her life have been violent and at the time she thought that was normal discipline. On reflection, after years of counselling, she realised it was not normal and she regrets she did not do more to protect the children.

14. Ms G is an acquaintance of the parents, has remained in contact with them over the years. She is 28 years of age and a qualified teacher’s aide. She is married to Mr G and they have two children, aged 10 and 7. She has known the parents since 2007. The Gs lived with the parents, and helped them with household chores and caring for the children, in return for accommodation. That was from July to September 2008. The child was about four years of age.

15. Ms G deposes to the usual household routine involving K, the older sister, waking the child in the morning, giving him breakfast, making his lunch, and getting him ready for preschool. The mother would get out of bed, look after the child until a friend, Mr L, came to pick up the child and take him to preschool.  Mr L would collect him after preschool and look after him until about 4 or 5. Ms G would prepare the evening meal, feed the child, but only when Mr Casey – that is the father – allowed the child to have dinner.  She would bathe the child and put him to bed in the evening. Ms G says that she did all the cleaning.

16. There were many days, she says, when the father would not let the child eat dinner. This happened three or four times a week. That would be punishment for something the child had done or because Mr Casey was in a bad mood.  She says the father would yell and scream and lock the child in his bedroom.  Sometimes she was able to sneak food to him, but she had to do that without Mr Casey knowing.  She says that the lock on the child’s door had been turned around, so that he could be locked in from the outside but he could not get out from the inside. He was locked in his room sometimes for 30 minutes, or for two or three hours or longer. The window was nailed shut.

17. On one occasion when the child was locked in his room, he ripped the cover off his mattress and climbed under the cover and laid there. Ms G deposes that as a result, the father took the mattress away and the child was required to sleep on the bare floor. She says that on one occasion when the child was locked in his room, she found poo on the windowsill. She asked the child how that got there and he put his hand down his nappy and pulled out some poo and put it there. The child was then about four years of age.  She says the only attention the child ever got from Mr Casey was yelling and smacking. She never saw Mr Casey cuddle him or praise him or give him any positive attention.

18. Ms G says that the child was not given enough food. His milk was watered down, with a teaspoon of Nesquik mixed in. She does not think that the child knew what vegetables were until she fed them to him. She gave him broccoli and potatoes. She says the father’s mood and behaviour were unpredictable. She deposes that on one occasion, he pushed the fish tank off its stand and it smashed everywhere. The father insisted the DVDs be placed in an alphabetical order. If the child took a DVD out and put it back in the wrong place, he would be punished. She says if he did do that, he was forced to rearrange the whole collection. She says that he was too little to do that as he was just learning his alphabet.

19. Once she went to get the child for lunch and she found him hiding on top of his cupboard.  As a result, Ms G says, the father made the child and K switch rooms so that there was not a cupboard to hide on.  There was no lock on the new bedroom door so the father tied a rope to the door handle and put a heavy toolbox in front of the lounge room door so that the child could not open the door.  She says that the child had forgotten to put his undies on one occasion after using the toilet and he soiled his pants. She says that he saw the father coming and was petrified and ran away. Chunks of poo, Ms G says, fell on the floor. She says that she lied and said that it must be chocolate, to protect the boy.

20. Ms G says that she saw Mr Casey hitting and smacking the child a lot.  Once the child was asking for chips or a drink, or something similar. At first Mr Casey ignored him and then he hit him. He hit him with the back of his hand to the boy’s forehead, with such force that the boy went flying across the room into the wall opposite. Again, he was about four years of age at the time. Ms G deposes that the father hit him on his body, hit him with an open hand and sometimes with a closed hand. She saw the child with a bleeding nose, many bruises.

21. She says that Mr Casey did not believe that the child had Asperger’s syndrome or ADHD.  She says that the father never gave the child his medication, and would make statements like, “[C] is just being a brat.”  She says that Mr Casey never harmed her children, but that he shouted at them, and that ultimately, she says, led to her and her husband moving out. To her knowledge, the child had never had a birthday party, nor Christmas presents. She had to tell her children not to mention Christmas or birthdays around the child. One Christmas the mother bought a trampoline and wanted Ms G to keep it at her place so that the child could use it there, but the father would not let him use it.

22. Ms G gives evidence about the incident where the father and K had an argument, leading to K moving out. I referred to that incident in my earlier reasons. Ms G says that Mr Casey chased K out of the house and left the child unattended. She says that she and her husband were in the backyard and they came into the house and found the child alone. She says they were not asked to look after the child. The police were called. She says that the child saw Mr Casey in the police car yelling and screaming and going off his head and that the child was scared and crying. Ms G says that Mr Casey never took the child to preschool.  Mr L ultimately stopped helping and the mother had to do it.  There is evidence I recorded on the last occasion the mother suffers from fibromyalgia, a debilitating condition.

23. Ms G tells of an occasion when Mr Casey and the child visited them and the child did a poo in the bath. Mr Casey made the child clean it up but the child did not know what to do - he was only four or five at the time.  Mr Casey screamed at him and then walked out. The child got the dog’s water bowl and tried to scrape it up.  Then Mr Casey came back in, smacked him really hard on his bare bottom, then Mr Casey just left it there.  She says that she reported her concerns about the way the child was treated by Mr Casey to DoCS twice, once during the time she and her husband lived with him and once afterwards.

24. The Carnegies have given updating evidence.  Mr Carnegie, relevantly, gives evidence of an occasion when he supervised time between the father and the child on 14 August.  He said he stayed fairly close to the child but tried not to intervene.  The father turned up with a lady called Ms M. It was observed in the hearing yesterday that although there may be a relationship between the father and Ms M, she is not on affidavit and there is no mention of her in the father’s evidence. Mr Carnegie describes the child being resistant to too much close contact with the father; the father being unresponsive to the child’s requests;  the father pressing the boy in relation to his own love for the child and the fact that he would fight for the child. He observed the child wave his arms as if to say that he had had enough of the father saying various things to him.

25. The father said that he had a present for the boy but did not give it to him. The father told the child about Mr N. Mr N was somebody with whom the father and the child lived for some considerable time, but the Mr Carnegie says that the father was referring to the older of his children, Mr N, who now lives in the Country O. Mr Carnegie says he is not aware that the child even knew that he had an older brother called Mr N.

26. Mr Carnegie said that the boy wet his pants on the way home.  When he got home, the child said to Ms Carnegie, “Mum, Mum, I saw my old dad at the park,” and Mr Carnegie says that he noticed that the child did not mention visiting or seeing the father since that time.  He says that Mr Casey refused to speak to him during the visit, that he did not say hello or goodbye. Mr Carnegie said he felt very uncomfortable, found his tone of voice and body language, facial expressions, very threatening and intimidating, and says that he would not be prepared to supervise again.

27. Then Ms Carnegie talks about – and the father gives some evidence about this – the efforts that were made by both of them to cause contact and telephone communication to commence.  Though they give very inconsistent versions of events, it is possible for me to say whether one version is correct or not.  The concerns from Ms Carnegie were that the boy was told things by the father that really were not helpful in the circumstances. She says that she has heard some of the phone conversations, because it was necessary for her to sit next to the child to encourage the child to have telephone communication with the father.  On 17 July she heard the father say, “I will do anything I can to get you back properly;  I’m fighting for you, son.”  the child referred to the Carnegie’s house as his home. The father said, “Mine and your place is home;  I’m fighting to bring you home;  I’m fighting for you to live with me always.  I can not wait to have you back.  On 31 July, I have a birthday present for you but I will only give it to you when you move back in with me.”  the child tried to guess what the present was but the father did not tell him.

28. On 7 August the child asked the father why he did not like Ms Carnegie.  The father replied, “Because she kidnapped you.” Again, Mr Casey had the child try and guess about the birthday present but would not tell him what it was. On 7 August the father sent the boy a text message:

    Hello my beautiful boy, I’m sending you this message to let you know that I will be on the train for court on Sunday and I will try and ring you but may not have service at the time I am allowed to call, but will try.  Love you, my boy, and cross fingers that the judge will give you back to me.  It will be another month before I can see you;  they have made sure of that.  Anyway, love you heaps, and kisses and cuddles from your Dad, your only Dad you will ever have.  Till then, TTFN.

1. Then there was correspondence between the lawyers to try and stop that sort of communication. Ms Carnegie says that the father does not listen to the child.  On one occasion, the child asked the father, almost begged him, to listen to him play a song on a toy keyboard, but the father continued to call out the boy’s name and did not listen. Despite the brevity of the phone calls, the child, she says, spends half the time trying to get off the phone.  He says things like, “I have had enough now,” “I have to go now,” “I need a play break,” “I don’t want to talk any more;  bye, Dad.”

2. Prior to the phone call on 7 August, the child said to her, “I do not want to talk to old Dad.”  After the call, the child was very distressed and afraid;  “Dad is on a train;  he is on his way here.”  She says that there has been a noticeable deterioration in the child’s behaviour since the call.  He becomes more hyperactive, inattentive, displaying behaviour such as flapping his hands, jumping and spinning.  She has noticed changed behaviours since the contact began;  he is more clingy;  afraid to be in a room alone;  infantile tantrums;  wetting his pants and his bed;  waking regularly during the night, sometimes crying, sometimes wanting a cuddle;  sometimes taking sweet foods from the kitchen and eating them in secret;  having difficulty getting to sleep, despite his medication;  being aggressive and violently hitting, hair-pulling, kicking, and the like;  destroying his possessions, such as breaking a tennis racket by banging it into the ground and by being generally argumentative.

3. He has made several statements indicating his feelings of being returned to Mr Casey.  He said:

   I don’t want to live with old dad.”  When I told him he did not have to, the child said, “But he told me he is fighting for me.” “Dad has got the motorbike going;  he is going to come and take me soon. 

   She says that the child appeared afraid when he said that. 

   He said, “My old Dad’s job is to look after me.  He is fighting for me, you know?  Are you going to read the letters?  I want to stay here.  We need to get everyone we know to help us fight.  If there’s a fight, there’s a fight.”  And the child demonstrated clenching his fists and punching.  On a way to a friend’s house to play, the child said, “Don’t tell my old Dad where I am;  don’t tell the police either, if they ask.” 

   Those things occurred since the orders made on 7 June. 

4. She says that the child rarely mentions either of his parents, but Ms Carnegie interprets the way he talks about the father to be in a fearful manner.  She also believes that he has read the court materials provided by Mr Casey. One day when she said that the child was being naughty, he said something about what happens when he is naughty at the father’s place;  first he said, “Dad doesn’t smack me;  he just sends me to my room, like you do.”  He went on to talk about how he lays down so that Mr Casey cannot smack him, demonstrating “planking”:

   [C] looked at me when he realised that he had let it slip that his father still smacks him and said, “Please don’t send it to my Dad.

   She told him that she would not:

   But you did before;  you wrote it and sent it to him.”  He went on to explain he did not want [Mr Casey] to know because he gets “really mad”.  the child asked me one day –

   says Ms Carnegie –

   if the thing I was typing was to send to [Mr Casey].

   He had not read it, and she says she had done nothing to make him think that.  She says that suddenly the child knows her surname and has started referring to his paediatrician as Dr P, instead of P, as he did before being taken by the father.

5. Ms Carnegie specifically addresses the proposal that the grandmother supervise. She does not believe that would be in the best interests of the boy.  She believes, from things that have been said to her by the mother, the father, and other family members, that the father and his mother’s relationship can be volatile and they have had periods when they communicate with each other and periods they do not. She noted that the paternal grandmother did not attend court or spend time with the child on the most recent occasion and that there might be a reason for that.

6. She refers to the fact that the father’s older children, H and Q, were removed from his care and placed in the care of the paternal grandmother by the Department of Community Services.  She understands that a condition was that he not be unsupervised and Ms Carnegie believes that ultimately the children were placed in foster care. That evidence is hearsay and not terribly helpful.  She is concerned about the problems of the child travelling to R Town under the father’s proposal. She says it is a four-hour drive, but because the child cannot travel for more than an hour without stopping for a break it would necessarily be much longer. She says that he requires constant attention, and that he can not get that if he is in the back seat of the car.  All of the travel would need to be done on a single day.  She talks about the problems for herself and her husband and the need to fit in their paid employment and the needs of the child and their other children. There is the issue of the cost of the travel, and so on.  And she is worried about photographs of the child on the Facebook page for the father, and there is mention on the father’s Facebook page of:

   My ex [Ms B] and her cousins have now taken all parental rights off me;  I have no say in what happens to my son.  I saw him yesterday and he was frightened of me and withdrawn, not a happy boy.  Now I have to go to court and get a final judgment on the case.

7. So that is the new material. 

8. There is no affidavit from the paternal grandmother. She was contacted by telephone yesterday and some evidence-in-chief was drawn from her by the father’s counsel. The gist of that evidence was that she is 65 years of age, and she would agree to supervise the father. She was asked particularly about a compromise proposal that whereby the father would spend time with the child in Sydney, and she said that she would be able to supervise that; and would be available once a month.

9. She was asked, I think, about her health, and said that she was fine. As to the comment that she was not at the August contact occasion, however, last month she had hip replacement. She has not been able to drive. She has an appointment with her surgeon on 13 September and expects to be given the all clear.  She was asked about how she would get to Sydney and she said she would prefer to drive. She was asked about whether she could drive to Sydney and she said that she could drive to S Town – I think she must live in T Town or R Town – then she added that she could drive to Sydney.

10. She was asked about what she would do if the father became angry or did something inappropriate or tried to take the child away, and she said that she would call the police. She was asked about her relationship with the father and she said that she had had real problems with him in the past. She had those problems most recently in 2010. She said that she felt now that she was able to get through to the father and communicate with him adequately and that she would be able to exercise some control over him.

11. I am not able to make findings of fact about the disputed issues of fact.  This is a matter of very narrow compass.  The father’s proposal is that he would have time each fortnight.  The proposal of Ms Carnegie, is the same, provided that it is possible for the father to spend time with the child on the D Region every fortnight. There is evidence that dates are available, on that sort of basis. Ms Carnegie is opposed to the boy undertaking the travel to R Town and is concerned about the capacity of the paternal grandmother to supervise the contact.

12. The father says he would like to see the child in R Town and if he cannot do that, he would like to see the child in Sydney in the alternate fortnights, and he would travel to the D Region once a month. His mother says that she can drive him to Sydney once a month. I gather that the father proposes to get himself to the D Region once a month and then to have his mother drive him to Sydney once a month. That is inescapable logic in relation to the father’s alternate proposal. In those circumstances it seems to me that the sensible solution, given the concerns that have been raised, is that there be contact at the centre every fortnight on the D Region. In that way there is no need for the paternal grandmother to provide the supervision. Once a month, every alternate visit, she could assist by doing the driving, which she says she is capable of doing.

13. There is no evidence before me – but there must be similarities between the drive from the U Region to the D Region and the drive from the U Region to Sydney. There are probably swings and roundabouts, in terms of the difficulty of struggling through Sydney traffic, compared to any greater distance to the D Region. In that way, it seems to me that the intent of the orders is met, that is, maintaining the contact between the child and his father. There were references made on the last occasion to the police observing a nice interaction between the father and the child. However, that proposal will ensure that there is protection, not only for the child but also protection for the father against any allegations of inappropriate behaviour by him, in relation to his time with the child. It must be remembered that the child is not a child who is up with his cohort in terms of development. The bare evidence suggests that his parenting has been less than adequate.

14. I noted on the last occasion the record of the changes of residence this boy has had in his young life. It is likely that he is somewhere in the autism spectrum by way of Asperger’s syndrome, and he has been diagnosed to have ADHD.  Mr Kenny very forcefully made submissions on behalf of the father today but it seems to me that the father had been offered a lifeline, in terms of having a more relaxed relationship with his son.  This is a boy who has lived with him for many years. I appreciate that there is a difference in quality between the time that would be available, whether at R Town or on a day-only basis at some sort of venue or watching movies, or whatever, in Sydney, and the formal contact centre environment but it is a question of managing the presenting risks.

15. The boy’s lawyer, Mr Naidovski, does not support the proposal for the travel to R Town, and I took it that he did not support supervision by the maternal grandmother.  I repeat what I said on the last occasion; there is no more generous thing than somebody giving up their time for the sake of a young child and the same applies to the paternal grandmother.  She has just had a hip replacement, she is facing what I would imagine would be a very arduous commitment, sitting in a car for four and a half hours, or whatever it is, each way, to facilitate her son having time with her grandson, and that is a loving thing to do.

16. The parties – all of them – will be devastated if anything untoward happens to this boy. The orders can help protect against that. The recent evidence suggests that the father’s relationship with the child has been a loving relationship.  The father reports about the frustrations he had getting time; he complains about the artificiality, the lack of free-flowing conversation that he can have with his son, that he used to have with his son;  the fact that he can not get on with the medical supervision of his son. He says he provides clear urine analysis screens for drug-taking, which have been expensive. He reports about the significant cost of the travel arrangements and the impost that they make on him. Because he has to spend two nights in Sydney, it involves $420. The father is on a disability pension.

17. There is a flipside to that, of course. Not perhaps as important as the other issues, and that is that the Carnegies have taken on this boy with no financial support from the parents. They have had the additional imposts because of the boy’s needs, providing for supervision and driving him around. Those arrangements all take time out of their busy lives and their need to have some time with their own children.

18. It seems to me that the appropriate course is for the father, with the assistance of his mother, to arrange to travel to the D Region once a month under his own power, and then once a month with his mother.

19. The orders that I made on 7 June provide for the child to spend time with the father at times agreed between the father and Ms Carnegie, provided that those times are at a contact centre or supervised by a person acceptable to Ms Carnegie.  I propose to make a note that in addition to any other arrangements that are agreed, provided that the E facility on the D Region can facilitate this – and I think I was told yesterday they can – that the father can have once a fortnight at that facility with the child. 

20. Next, there are the issues raised by Ms Carnegie - orders 5 and 6 related to injunctions. They are agreed on a no-admissions basis. That leaves removing the photographs of the child from the Facebook entry.  The order that is agreed that the father by and is hereby restrained from publishing reference to these proceedings or to the child or any party in the proceedings on his Facebook page, so that would cover the photographs of the child on Facebook and so that is already dealt with.

21. The other issues then are, firstly, whether the telephone time under order 9 would be cancelled on the weekends when the father has had time at the supervised contact centre.  There is evidence about the level of disruption and distress that those telephone calls have caused and I will make that order.

22. That leaves the question of the costs of the supervision at E facility.  I did not make an order about that in  the original orders. I am very sympathetic to the Carnegie’s plight. On the other hand the father does not have any money, he is on a disability pension and the mother does not have any money. It seems to me that the best I can do is to provide for the father and Ms Carnegie share the costs of the visits. I understood from something somebody said yesterday that that meant $30 a visit was paid by Ms Carnegie and $10 a visit was paid by the father.

23. Next, there is an application for the costs of these proceedings.  Given that the door was left open to the father to try and facilitate some additional arrangements for the supervision, and given that the father is in receipt of a grant of legal aid, I do not intend on this occasion to make an order for him to pay the costs of the Carnegies or of the mother. There may, of course, be a different approach to a further, similar application.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 6 September 2011.

Associate: 

Date:  21 September 2011