Churchill and Raske (No. 2)

[2014] FamCA 939

FAMILY COURT OF AUSTRALIA

CHURCHILL & RASKE (NO. 2) [2014] FamCA 939

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child - Where parties substantially in agreement as to appropriate orders but for some five or six issues which require judicial resolution – Where the time and progression of time the father should spend with the two biological children is in dispute – Where mother contended slower progression of time than that proposed by the ICL and father – Where mother’s eldest daughter has disclosed that the father sexually assaulted her – Where agreed orders provide that there will be no commencement of time with the father until six months from the date of the orders and include that the mother and child enrol in therapeutic counselling – Where in weighing all the factors the Court was satisfied the orders proposed by the ICL are in the best interests of the children – Where court considered Christmas contact which was in dispute – Where the Court favoured mother’s proposal that such contact commence in 2016 as the contact centre was not open and could not facilitate supervised contact with the father – Where the Court considered whether the paternal grandmother could supervise contact in the future – Where evidence of the ICL was that once the children reached pre-adolescent age supervision return to a more normal natural form – Where the Court accepted evidence of the ICL.

Family Law Act 1975 (Cth) ss 60CC, 62B, 65DA, 65L.

APPLICANT: Mr Churchill

RESPONDENT: Ms Raske

INDEPENDENT CHILDREN’S LAWYER: Ms Murray

FILE NUMBER: TVC 1360 of 2011

DATE DELIVERED: 8 October 2014

PLACE DELIVERED: Townsville

PLACE HEARD: Mackay

JUDGMENT OF: Tree J

HEARING DATE: 30 September; 1, 2, 3 and 8 October 2014

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

SOLICITORS FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Geraldine Anne Murray

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Pennell

Orders

1. The children E born … 2006 and V born … 2007 (“the children”) live with the mother.

1. The mother shall have sole parental responsibility for all long term issues relating to the long term welfare and development of the children.

2. The mother shall keep the father advised about the children’s progress and development by way of a monthly email report, such report to contain details regarding medical issues relating to the children, schooling, sporting and information regarding the children’s other day to day activities.

1. Within 14 days from the date of this order the mother will:

   (a)enrol for therapeutic counselling and counselling to assist her to facilitate the children’s reunification with their father.

   (b)take all necessary steps to enrol M in therapeutic counselling.

2. Within 21 days from the date of this order the mother will seek a care plan from the children’s treating medical practitioner with a view to enrolling the children for therapeutic counselling relating to their reunification with their father, such counsellor to be nominated by the Independent Children’s Lawyer or the s 65L supervisor, provided that if a care plan is unavailable, the counselling will still take place. It is noted that such counselling is to continue as required by the counsellor. It is further noted this counselling will be paid for jointly by the mother and the father.

3. Within 14 days from the date of this order the father:

   (a)will enrol with a counsellor to address his alcohol abuse, noting that the father agrees this will be with a private counsellor and not ATODS.

   (b)will enrol in therapeutic counselling to facilitate and optimise his reunification with the children.

4. No later than 6 months from the date of these orders, unless the children’s counsellor (having consulted with the mother’s and M’s counsellors and the s 65L supervisor) believes the children are not yet ready to commence spending time with the father, then the mother and the father shall arrange to attend intake appointments with Town C Contact Centre.

5. Upon the ICL being notified of any delay in the commencement of the father’s time with the children, the ICL shall have liberty to apply so as to increase the time period stipulated in Order 7 if the matter cannot be agreed to by the parties.

6. Following completion of the intake procedures the Father shall spend supervised time with the children as follows:

   (a)At Town C Contact Centre  for a period of 4 months for a maximum of two (2)  hours per fortnight;

   (b)At Town C Contact Centre  for a period of 8 months for a maximum of four (4)  hours per fortnight (noting that it is anticipated this time will be spent on Saturday and Sunday during one weekend);

   (c)Thereafter, and only upon the father employing an independent supervisor (such person to be introduced to the mother and approved by her as a supervisor for the children with the mother not to unreasonably withhold her consent should the supervisor be an independent professional person)

   (i)for a period of 12 months each alternate Saturday for a period of five (5) hours, such time to increase by an hour each 2 months until it reaches the maximum time of 8 hours per day;

   (ii)Thereafter supervised time each alternate weekend from 9am until 5pm Saturday and 9am until 3pm Sunday; 

   (iii)For Christmas Day commencing 2016 and each alternate year thereafter from 1 – 5pm.

   (d)When E reaches 12 years and V 11 years, as provided for in Order 9(c)(ii) and (iii), save that supervision is to be by the paternal grandmother, provided that she has:

   (i)been present with the children, the father and the professional supervisor for at least 10 visits; and

   (ii)signed an undertaking to be provided to the mother that she will:

   (A) remain in the presence of both children at all times during the period of supervision;

   (B) not leave the children or either one of the children alone with the father at any time;

   (C)  monitor the fathers conversations with the children at all times; and

   (D)      cease the children’s contact with the father immediately should she be unable to continue to supervise and return the children to their mother. 

   The paternal grandmother and the professional supervisor may organise a transition period over 6 months for the transfer of the supervision to the paternal grandmother.

10.If the father cannot provide an independent supervisor as per Order 9(b) then the father’s time with the children will continue to be supervised at the contact centre as provided in Order 9(a).

11.Once the father has spent time with the children at the contact centre for a 6 month period, then the paternal grandparents may also attend the centre during the father’s visits.

12.After the father has spent 1 year with the children at the contact centre, the paternal grandmother may spend time with the children, provided she arrange time in advance with the mother, and the father undertakes that he will not spend time with the children or communicate with the children while they are spending time with his mother pursuant to this Order. It is noted the paternal grandmother is agreeable to the mother attending any contact periods with the children pursuant to this clause.

13.Upon the mother giving the father 28 days’ notice, the father’s time with the children will be suspended for 2 block periods, one of 2 weeks and one of 3 weeks, such block times not to be taken consecutively, to allow the mother to travel away with the children on holidays. The father will receive makeup time of one visit after the 3 week block period.

14.Once the paternal grandmother is supervising contact in accordance with these orders, if it is reasonably practicable for him to do so, the father will arrange for the children to be collected from and returned to the mother’s residence on any day he is spending time with them, but that otherwise the costs of any travel of the children is to be shared equally between the parties.

15.The father undertake not to drink alcohol in the period of 12 hours prior to the children spending time with him and he further undertake not to drink alcohol while the children are spending time with him. 

16.The mother undertake not to drink alcohol in excess of the legal Queensland driving limit whilst the children are in her care.

17.The father will not attend at the mother’s residence.

18.Each party shall advise the other of any change to that party’s residence, email or telephone contact details within twenty four (24) hours of such change.

19.Neither party shall denigrate, or allow others to denigrate, the other party or members of the other party’s family, or friends, or partners, to the children or in the presence of the children or at all.

20.The mother shall not relocate the children’s residence away from the Town C area such as would make it substantially more difficult for the father to spend time with the children, without agreement from the father, or an order of this court, first obtained.

21.This Order of the Court shall be sufficient authority to the children’s school(s), extracurricular activity providers, allied health and medical practitioner(s) to ensure that the parents are at liberty to make any enquiries they wish in regards to the children’s schooling progress and health and receive copies of documents at that parents cost if any.

22.That a supervisor be appointed pursuant to s 65L of the Family Law Act 1975 to assist the parties in complying with these orders and to ensure the orders are complied with and such supervisor continue acting for a period of 2 years.

23.This order acts as an authority to the children’s counsellor to consult with the s 65L supervisor and the Independent Children’s Lawyer regarding administrative and procedural issues surrounding the counselling.

24.The Independent Children’s Lawyer continue to work with the parties for a period of 2 years in order to monitor the requirements contained in these orders, and at the expiration of that time the Independent Children’s Lawyer will be forthwith discharged with the thanks of the Court.

25.Otherwise all extant applications be dismissed, and the matter be removed from the list of active pending cases.

26.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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Churchill & Raske (No. 2) 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 TOWNSVILLE

FILE NUMBER: TVC 1360 of 2011

Mr Churchill

Applicant

And

Ms Raske

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings commenced before me in Mackay last week and ran for some days.  They concern competing parenting proceedings for the parties’ two children, E aged 8, and V aged 7.  Although initially the parties were unable to identify any areas of agreement between them, by the time of the conclusion of the hearing last week the parties had moved to being substantially in agreement as to the appropriate orders.  There remain, as identified by the parties, some five or six issues which have been unable to be agreed upon by the parties and which require judicial resolution. 

2. The first issue as identified by the parties is the time which the father should spend with the children supervised at Town C Contact Centre and the progression of that time.  The second issue is whether or not the paternal grandmother should be able to be supervisor of the children’s time with the father later down the track.  The third issue is whether or not the mother should be restrained from relocating outside of the Town C district.  The fourth issue is when Christmas contact between the father and the children should commence and the fifth issue is whether or not there should be some order providing for the costs of travel of the children between Town C and Town D upon the commencement of off-site supervision.

3. Turning firstly to the question of the time which the father should spend with the children and its progression at Town C Contact Centre, the Independent Children’s Lawyer and the father propose that the initial period of time should be for four months for a minimum of two hours on one day per fortnight.  They then propose that the second stage of the supervised contact at the contact centre should be for a period of eight months and for a maximum of four hours per fortnight, likely across two consecutive days of the one weekend.

4. On the other hand, the mother contends for a slower progression and particularly says that the two hours per fortnight should be for a period of 12 months and the four hour per fortnight period should not commence until the expiration of 12 months and should last for 12 months.

5. The Court is not without evidence on this point.  On Friday, 3 October Ms B, the Family Report writer, who was then on a day off, fortunately made herself available to give additional evidence by telephone.  Her evidence was that the progression to four hours per fortnight spanning two days on the one weekend was best arrived at quickly, and her view was that a period of two or two and a half years to arrive at the commencement of off-site supervision was too long.  In substance her evidence was, given that the real goal of these orders is to have the father spending time with the children in supervised, but off-site time, the sooner one gets there, the better.

6. The mother’s argument against that more rapid progression was the impact of all of this upon M.  M is the eldest daughter of the mother and has a strong sibling relationship with both of the children the subject of these proceedings.  M has disclosed that the father has sexually assaulted her on an occasion when the parties were living together.  No doubt part of the reason why the father has consented to, as shall be seen, continuing supervision of any time with the children, is because of the apprehension that the mother’s vigilance in relation to the two children the subject of these proceedings might, whether consciously or otherwise, see further allegations of sexual misconduct levelled against him.

7. However, to return to the mother’s concerns in relation to M, plainly it is likely to be a matter of some anxiety for M, firstly, that the father is being re-introduced to her broader family circle and, secondly, that her two siblings will be spending time with the person who she believes to have perpetrated a sexual assault upon her.  Plainly there will be issues which may arise in relation to M’s dealing with both of those facts.

8. What is in the children’s best interests is determined by a consideration of the relevant section 60CC factors.  The primary considerations identified by section 60CC(2) are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

9. It is really the primary consideration in section 60CC(2)(a) which is relied upon by the Independent Children’s Lawyer and the father in suggesting that one should arrive at the off-site supervision as soon as possible.  On the other hand, the mother would say, no doubt, that the additional considerations identified in section 60CC(3)(d)(ii), being:

   The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from any other child…with whom she has been living –

   and, further, section 60CC(3)(m):

   Any other fact or circumstance that the Court thinks is relevant –

   are engaged here by the prospect of M’s distress.

10. Whilst I accept that M’s reaction to these orders will likely be at least initially adverse and thereafter not presently able to be predicted, I am mindful that the orders that the parties have agreed include that within 14 days of the date of this order the mother will take all necessary steps to enrol M in therapeutic counselling and, further, that such counselling will not take place until the mother has progressed in her own therapeutic counselling and, further, that there will be no commencement of the father spending any time with the children until, it would seem, about six months from the date of these orders.

11. Therefore, the agreed orders are intended to lay the groundwork for M being able to cope and be supported with these changes, and there is no reason to think that the counselling upon her would not be effective or that the counselling of the mother would not be of assistance to M in the sense that M will then be able to be provided support by her mother.  I am, therefore, faced with the tension between, in effect, the desirability of protecting M on the one hand and the desirability of promoting the re-introduction of the father into the children’s lives on the other.

12. Although the weighing of those factors is necessarily difficult, nonetheless, doing the best I can on the material before me, particularly mindful of Ms B’s evidence, I am of the view that the orders in this respect as proposed by the Independent Children’s Lawyer and the father are in the children’s best interests and they will accordingly be made.

13. The next issue between the parties which requires resolution is the progression of the periods of independent off-site supervision provided for by proposed order 9(c).  On the one hand the Independent Children's Lawyer proposes that there should be a period of 12 months in which, after an initial period of five hours each alternate Sunday, after two months and upon the elapse of each two month thereafter period that time would increase by an hour until it reaches a maximum of eight hours per day.  The Independent Children's Lawyer also proposes that after the 12 month period there should be a period of – between 9 am and 5 pm on each alternate Saturday and 9 pm till 3 pm each Sunday.

14. On the other hand, the mother proposes that the initial period of supervision should be for 18 months and it be fixed at a period for five hours.  She then proposes that there be a further 12 month period each alternate Saturday from 9 am to 5 pm before, at the expiration of, on my calculations, some 30 months, the alternate weekend time from 9 till 3 on Saturday and 9 till 5 on Sunday should commence. 

15. Again, this was a matter that was touched upon by Ms B and her evidence supported the position of the Independent Children’s Lawyer or, more precisely, her evidence founded the proposal by the Independent Children’s Lawyer, which was then modified to accommodate Ms B’s evidence.

16. In my view, the concerns which the mother has which motivates her regime of orders, namely, the desire to minimise the impact of these orders upon M, whilst a real issue for consideration, is unlikely to be substantially affected by the orders proposed by the Independent Children’s Lawyer or at least the mother’s orders are unlikely to substantially ameliorate any risk to M once the supervision offsite commences.

17. The Independent Children’s Lawyer and the father proposed, at least at the commencement of the hearing before me, that the father should spend time with the children on Christmas Day as soon as possible, which, given that supervised time with the children would not commence for about six months, would be 2015 at the earliest.  However, during the course of argument it became plain that in fact the Town C Contact Centre would not facilitate Christmas contact, whether in 2015 or otherwise, as it is closed on that day.  The mother’s position is that Christmas contact should not commence until 2016.  As a matter of practicality the mother’s order must be preferred because there is no prospect of Christmas contact being supervised at the Town C Contact Centre in 2015.

1. The next issue in dispute between the parties is whether or not from the time when E turns 12 and V 11, the supervision of their time with the father could be provided by the paternal grandmother.  That is proposed by the Independent Children’s Lawyer and the father, but opposed by the mother.  Again this was a matter which was the subject of evidence from Ms B. 

2. Her evidence was that, as a general comment, supervision is appropriate to stop when the children reach an adolescent stage, because there are not parenting circumstances that require the monitoring of boundary crossing, as the adolescents can look after themselves.

3. Her evidence further was that she could see value in continuing supervision here, given the prospect of ongoing allegations, or at least hyper-vigilance on the part of the mother, but she went on to say that that was not necessarily professional supervision.  Here she said that ideally supervision would continue in those circumstances, which will assist in keeping unnecessary issues at bay.  She said that once children reach pre-adolescent age range, she would suggest that supervision return to a more normal, natural form, for example, the paternal grandmother, because otherwise the children are likely to perceive supervision by a professional as suggesting something abnormal, and that spending time with their father comprised a risk to them.

4. I accept her evidence and I am of the view that 12 and 11 respectively for E and V is an appropriate age at which, in pre-adolescence, they would be able to raise issues in relation to inadequate supervision of them, or be vigilant in relation to any potential boundary crossing by the father, for themselves, and therefore the otherwise undoubted disadvantages of having a family member supervise in these circumstances are sufficiently ameliorated.

5. Otherwise I am satisfied that the orders proposed by the Independent Children’s Lawyer, and agreed to by the parties, are in the best interests of the children.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 8 October 2014.

Associate: 

Date:  8 October 2014