Charles and Mensah (No 2)

[2011] FamCA 915

FAMILY COURT OF AUSTRALIA

CHARLES & MENSAH (NO 2) [2011] FamCA 915

FAMILY LAW – CHILDREN – Child related proceedings

APPLICANT: Mr Charles

RESPONDENT: Ms Mensah

FILE NUMBER: MLC 6231 of 2010

DATE DELIVERED: 28 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 28 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Harris

SOLICITOR FOR THE RESPONDENT:	Victoria Legal Aid
INDEPENDENT CHILDREN'S LAWYER	Danielle Webb

Orders

1. That paragraphs 2 and 3 of the orders of Justice Cronin dated 3 October 2011 be discharged.

2. That the Husband shall spend time with the child J CHARLES born … June 2010 (“the child”) as follows;

   (a)Each Saturday from 10 am until 4pm with changeovers to take place at C Contact Centre;

   (b)Each Friday from 4.30 pm until 6.00 pm with changeover to take place at C Contact Centre; and

   (c)On Boxing Day from 9.30 am until 5pm with changeover to take place inside B Police Station.

3. That for the purposes of the Husband’s time on New Year’s Eve 2011 being Saturday 31^st December 2011 or any other day on which C Contact Centre is closed, changeover take place inside B Police Station.

4. That for the purposes of paragraph 2 (c) and 3 the husband and wife do all acts and things to make application to D Agency so that a worker from that organisation can facilitate the changeovers which take place inside B Police Station and the husband be responsible for the costs associated with this.

5. That the husband’s time on 24^th December 2011 be suspended.

6. That the husband is restrained by injunction from instructing Mr W or Mr J or any other person who is either known to the Husband and Wife or who is on affidavit in these proceedings, to act on his behalf in relation to these Family Law Act proceedings.

7. (a)     That the injunction in paragraph 5 of the orders of Cronin J on 3 October 2011 preventing the husband from bringing the child into contact with the members of the wife’s family members is to continue; and

   (b)That the injunction in paragraph 10 of the orders of Senior Registrar FitzGibbon dated 23 August 2010 is to continue.

8. That the husband MR CHARLES and wife MS MENSAH, their servants and/or agents be and are hereby restrained by injunction from moving or attempting to remove the child J CHARLES born on … June 2010 (“the child”) from the Commonwealth of Australia and the Marshal of the Family Court of Australia and all the officers of the Australian Federal Police and the Police Forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until further Order of the Court.

9. That the Independent Children's Lawyer forthwith serve a sealed copy of these orders on the Marshal of the Family Court and the Australian Federal Police.

10. That both parents shall ensure that the child is known as and registered for all purposes as J CHARLES.

11. The husband and wife attend upon Victoria Legal Aid’s Round table Dispute Management Service for the purposes of mediation in about February 2012 and attend any subsequent appointments as may be recommended by the mediator.

12. That after the VLA Round Table mediation an updated Family Report pursuant to s62G of the Family Law Act (1975) be prepared by Ms L the Family Court of Australia, Melbourne Registry, unless all parties agree that it is unnecessary.

13. That all existing applications shall be adjourned to a telephone mention to be held by Registrar Field on a day to be advised to the parties once the ICL has notified the Registrar that the updated Family Report is either unnecessary or that it has been received.

14. That the parents shall exchange all relevant details about the child’s day to day care in a communication book to be exchanged at each changeover.

15. That the wife’s application in a case filed 22^nd November 2011 and the husband’s response to the application in a case be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Charles & Mensah (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6231  of 2010

Mr Charles

Applicant

And

Ms Mensah

Respondent

REASONS FOR JUDGMENT

1. When the case first came before me on 10 June this year I put in place a regime then for J (aged 17 months) to spend time with her father each Wednesday from 4.00pm until 6.00pm, then every second Saturday from 9.00am until 2.00pm and every other Sunday from 9.30am until 2.30pm.  The changeovers then were to be predominantly inside the B Shopping Centre at McDonalds.

2. The regime was apparently just getting establishing when, in early August, there was what was on any view was an absolutely horrendous assault on the mother in her own home.  She says it was conducted by members of her family.  She suspects Mr Charles was to some extent or some way in league with them.  He adamantly denies that.  That is not something I can get to the bottom of today.  The police are investigating, charges may be laid, but at this stage the matter is unresolved. 

3. The significance of it for today’s purposes is that it must have been an absolutely terrifying incident for the mother, the more so if ultimately her version of a history of family violence is supported.  I do not know what the finding will be, but that is the backdrop upon which she says this terrible experience occurred. 

4. After the assault, the mother was hospitalised, and there was correspondence between her solicitor and the father.  Her solicitor was seeking an agreement to injunctions restraining the father from bringing J into contact with any of the mother’s family members.  The mother’s concerns in that regard were obvious and understandable.  Mr Charles appeared– initially at least – to be saying he would not bring the child into contact with “anyone found to be responsible for the assault”.  That really did not go as far as the mother needed it to go to placate her.  Within the next few days there were negotiations.  He says he agreed to the injunctions as sought by the mother. 

5. On 8 August, within a few days of her release from hospital, the mother was readmitted, for surgery to her face. 

6. On 15 August, Mr Charles brought contravention proceedings against the mother because he had not seen J in that short period while the mother had been hospitalised or recovering. 

7. The case came before Cronin J on 3 October.  Various interim orders were put into place.  The case was then returning before me today. 

8. On 3 October, Cronin J ordered that J would spend each Saturday from 10.00am until 4.00pm with her father, and each Sunday from 3.30pm until 6.00pm with her father, with all the changeovers at C Contact Centre.  His Honour made an order restraining Mr Charles from bringing J into contact with the mother’s various relatives.  Mr Charles had leave to withdraw his contravention application, and there were various other details to the orders including that the parents were to use a communication book. 

9. For reasons that I will hear a lot more about once this matter comes on for final hearing, unfortunately J has spent very little time with her father since then.

10. There were issues about getting the contact centre started.  There was an issue about a day when J had an ear infection and whether the mother should or should not have had her there for time with her father. The upshot is that she has spent only about three occasions with her father.  That is not what was envisaged at all when I saw the parties in June.  For all these various reasons, about which I will hear substantially more evidence in due course, J has not had the opportunity for the consistent time with her father that I had then hoped. 

11. Today all the parties have come before me agreeing that the final part of the hearing could not proceed, that it should go ahead some time next year, and in the meantime the parties are to attend mediation.

12. There will be a determination as to whether there is a further Family Report.  There should be updated psychiatric reviews of the parties in accordance with Ms L’s request in her family report, and there will be a telephone mention with the Registrar in the early part of next year to see if the case has either reached an agreement, or whether there is a need to get it ready for trial and to make a date for trial before me.

13. Today there has been a range of issues between the parties.  Some have been resolved.  How to handle this Christmas Day has been resolved.  What name J will be known by between now and the hearing has been resolved.  The issue of a restraint against the father using certain lawyers that the mother argued should not be used because they have had other roles with the family has been resolved, and an issue about the mother wanting to take the child on a trip to the United States this summer has also been resolved by her withdrawing that application.

14. The main outstanding issue is as to the regime between now and the hearing.  The father’s case was put on the basis that there should be 3 hours each Wednesday from 5.00pm until 8.00pm, each Saturday from 9.30am to 5.30pm, and each Sunday 12 noon to 6.00pm.  At the start of the case he said that from 31 December 2011 it should be from 9.30am Saturday to 6.00 pm Sunday as well as the Wednesday. 

15. The mother’s case has been put on the basis that it should really continue between 10.00am and 4.00pm on the Saturday, and 3.30pm to 5.30pm on the Sunday.

16. The ICL’s proposal has been that it should be from 3.30pm to 5.30pm on Sunday, and for the existing period on Saturday, with a preference for Saturday and Wednesday rather than Saturday and Sunday, if an appropriate time could be found on the Wednesday that would fit in with J’s bedtime.

17. At this interim stage, just as it is at a final stage, the fundamental principle is that I must put J’s best interests as my absolute paramount concern.  I cannot overlook the intervening factor since I saw these parties, being this dreadful assault on the mother in her home. J was present.  On the mother’s account, the assault actually commenced while J was in her mother’s arms.  That is something that I need to look at in terms of the mother’s state of mind as a result, and that the perpetrator or perpetrators has or have been prepared to do this in front of this little child.

18. It is a major intervening factor.  It has had an enormous impact on the mother’s state of mind, and led to a very natural insecurity on her part, an insecurity she had already referred to.  Whether I ultimately find that she had any genuine reason to be feeling insecure before this, it would be hard to think that she did not have reason to be feeling very anxious and insecure in her home after this.  But I would need to hear more evidence about that before I could make a definitive finding. 

19. I need to take into account that, given the insecurity the mother is feeling, her wish that a Contact Centre be used for changeovers is a valid one.  Although it is not his wish, the father concedes that it might well be an understandable wish on the mother’s part at this stage.  On Boxing Day this year, when the Contact Centre is closed, the mother agrees to changeover inside B Police Station, where she feels relatively secure.

20. It is essential that I take into account J’s very tender years, and the very special needs of an infant of that age.  It is important that I take into account the various logistical problems.  The mother has no car and the travel involved between her place and the Contact Centre is reckoned between 1½ to 2 hours in each direction.  I must take into account J’s routine as a central platform for my thinking.  Her mother says that she generally has dinner around 5.30pm, and goes to bed around 7 or 7.30pm, so it is important that the regime be built around that factor. 

21. I need to take into account that although the father wants to start overnight time as soon as possible, and the Family Report envisaged that in the future it should start, he now agrees that, given the interruption to the time J has spent with her father – he would say through no fault of his own – it would not be appropriate from her perspective to suddenly start overnight time.

22. I also take into account the really relatively short time involved between now and the hearing, when I can have what is very contentious evidence tested, so that I can try to make findings as to where the truth might lie.

23. Taking all those matters into account, and the need for J to build up time with her father on a regular basis, I am satisfied that there should be one of the longer time periods each week and one of the shorter time periods each week, as was envisaged previously.  It seems that the Saturday time that has already been put into place, between 10.00am and 4.00pm is appropriate.  It enables the mother to get the child somewhere for the start, and it enables the child to get home in reasonable enough time for dinner.  It is in any event a long enough day for such a little one.

24. I agree with the Independent Children's Lawyer that if in addition to Saturday, if the other day could be Wednesday rather than Sunday, that would be more sensible from the point of view of travel and transport.  In considering a mid-week day, I am respectful of the father’s concern that he needs to work, and his work should not be unduly interrupted.  He suggested though a time on a Wednesday that is really untenable for the child.  He then said that he is willing to make it Wednesday, but if it is early in the day or late in the day, rather than the middle of the day.  I am comfortable to give him the choice, either from about 3.00pm or up until about 11.30am.  I do not mind which end of the day, so long as it enables the mother to get to where she needs to go, or to get the child home from where she needs to be.

RECORDED  :  NOT TRANSCRIBED

1. As to J’s baptism, sought now by the father, I have been around far too long to see any wisdom in buying into matters that require complex nuanced evidence for a true understanding of them.  This is a classic matter that should be dealt with when I have heard the evidence.  If I made a decision either in favour or against it at this stage, I would be doing so without proper information.  As such, I would not be acting in the child’s best interests.  I am not going to make any short-term decision, but it is something that naturally I need to consider in appropriate detail when I hear the case.

2. Ms Harris gave a summary of what I could do about it.  She said that if the parents have shared responsibility, they can either agree on this sort of decision, or the Court can make an order about it.  There is another option.  The Court can make an order that a particular parent decide a particular part of the child’s life, whether that is religion, education, health.  I am not saying I have got any intention of doing that.  I have not heard the evidence yet, but there is a full range of options from which I can choose, only once I have heard all the evidence.  So I am not going to make any short-term decision about something so important.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 28 November 2011.

Associate: 

Date: