Costello and Costello

[2017] FamCA 296

FAMILY COURT OF AUSTRALIA

COSTELLO & COSTELLO [2017] FamCA 296

FAMILY LAW – PARENTING – INTERIM ORDERS – where interim orders where revisited – where mother claims father presents an unacceptable risk of harm – where mother seeks time to be supervised – where the father has permitted the youngest child to sleep in his bed, contrary to previous orders – where the father has not been complying with his medication regime – whether father will comply with orders

APPLICANT: Ms Costello

RESPONDENT: Mr Costello

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 787 of 2014

DATE DELIVERED: 12 May 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 5 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fellows by direct brief

THE RESPONDENT: In Person

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Susan Gray

Orders

IT IS ORDERED THAT, UNTIL FURTHER ORDER:

1. Order 3 of the orders made on 12 April 2016 and order 7 of the orders made on 22 December 2016 are suspended.

2. The father is to spend time with the children on each alternate Saturday commencing 13 May 2017 from 9:00am until 6:00pm, with changeovers to occur at a place to be agreed between the parties, and failing agreement, at the public park in G Town situate between O Street and P Street.

3. The father shall not take the children further than 120km from G Town when spending time with them under Order 2.

4. The time for compliance of Order 4 of the orders of 16 March 2017 be extended to 4:00pm on Friday 16 May 2017.    

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

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

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: TVC787/2014

Ms Costello

Applicant

And

Mr Costello

Respondent

REASONS FOR JUDGMENT  

1. The trial of these parenting proceedings is due to commence before me on 13 June 2017.  However notwithstanding that, the mother now seeks to revisit the interim orders which were made on 22 December 2016, permitting the three children the subject of these proceedings to spend unsupervised time with the father.  She does so, on the basis that she claims that if the father were to spend unsupervised time with the children, he presents an unacceptable risk of harm to them.

2. Under the 22 December 2016 orders (which modified earlier orders of 12 April 2016) the children were to commence to spend unsupervised time with the father on alternate weekends from after school on Friday until before school on Monday.  However during the course of the hearing of the mother’s application before me, the father indicated that for the weekends that he would spend time with the children between now and the trial, he in fact only sought to have the children with him on Saturday between the hours of 9:00am and 6:00pm.  That is because he has some commitments on the Sundays which would mean that he would be not able to spend time with the children in any event.  Notwithstanding that position, the mother still insisted that any time with the father required strict supervision, even during the day.

3. In my reasons of 22 December 2016, I set out the relevant background facts and considered whether the father’s time with the children should then move to unsupervised.  I incorporate that material in these reasons.

4. In her affidavits of 9 April 2017 and 28 April 2017, the mother sets out the events since 22 December 2016 which she says justifies the reimposition of supervision of the father’s time with the children.  In summary they are:

   ·That the father has not disclosed to her the address of the residence where he spends time with the children, which means that an order which I made on 22 December 2016, which permitted the eldest of the three children to telephone the mother or a friend to request that all return to the mother, was difficult to implement;

   ·That on one or more occasions, the eldest child has in fact been separated from the younger two children, and therefore that again made the order in relation to the eldest child telephoning to ask for the children to return to the mother unworkable;

   ·That when he was spending time with the children, on one occasion the father became angry and sent the children to their room;

   ·That despite an order of 12 April 2016 restraining both parents from permitting the children into their bed at night, the father has allowed the youngest child to sleep in his bed on occasions;

   ·That the youngest child has stated that she has a secret with the father which made her feel “yucky;”

   ·That the youngest child had a sore vagina which was described as stinging, burning and itchy, and which had a white discharge.  Notwithstanding that, the child refused medical examination;

   ·That the mother has seen material which she says indicates that in 2015 during some supervised visits, staff of the relevant Contact Centre may have formed the view that the father had an erection;

   ·That on the most recent occasion when the children spent time with their father, there was considerable difficulty in coaxing them to go;

   ·That the father misled me on 22 December 2016 to believe that he was compliant with a medication regime which the orders then made contemplated him continuing on.

5. During the course of the hearing of the mother’s application, emphasis was particularly placed upon the risk which the father’s psychiatric condition poses to the children.  Specifically it was said that one can’t predict accurately what a person with a mental health condition might do in certain circumstances.  It was argued that the fact that the father is not apparently on any medication regime increases the risk.  It was said that the risk of the father violating appropriate boundaries, and most significantly sexual boundaries, with the children.

6. In his affidavit of 3 May 2017, the father conceded that he has, on occasion, permitted the youngest child to sleep in his bed.  He also attached a series of reports from his treating consultant psychiatrist, the most recent of which was 27 April 2017, which related to his attendance upon her on that date.  In that report she certified “it is my opinion that [the father] is relatively stable with regard (sic) his mental health.  I see no evidence that he is a risk to himself or others.”

7. It is concerning that the father apparently misled me on 22 December 2016 as to his compliance with his then prescribed medication regime.  It is further concerning that, contrary to the April 2016 orders, the father has permitted the youngest child on occasions to move into his bed during the night.  Whilst there are some further concerns raised by the other matters the mother relies upon, they are not of the same moment as these two.

8. What these concerns raise, is that the father may have the view that he can pick and choose for himself whether he will comply with orders, and whether he will comply with a recommended treatment regime.  Further, at the very least, permitting the youngest child to sleep in his bed suggests that he does not appreciate, or at least respect, the seriousness of the mother’s concerns that he poses a risk of sexual harm to the children because of the possibility that he will demonstrate poor regulation of appropriate boundaries in his interaction with them (accepting that whether he has done so or not in the past is a matter for trial).

9. In my reasons of 22 December 2016 at [34] I said that “I was well satisfied that such concerns as relate to the father’s poor boundaries have now abated to the point where unsupervised time should be trialled.”  Although, as I have noted, there are some matters of concern which have arisen since 22 December, the matters relied upon by the mother, individually or collectively, do not persuade me that the risk of the father’s violation of boundaries has increased to the point where supervision is again required.  I am particularly fortified in that conclusion because between now and trial there will only be two or three occasions when the children will spend time with the father, and that time will not include any sleep-overs.  Weighing the benefits which the children derive from having a meaningful relationship with the father against the risk of harm to them which he poses, sees the balance continue to favour the father spending unsupervised time with the children on the basis he proposes.

10. The mother, in the alternative, argued that if I were to permit unsupervised time on the Saturdays, it should not include the youngest child.  The basis for that was that one would not ordinarily permit an alleged sexual perpetrator to spend time with the alleged victim.  As to that, I accept that the mother does believe that the father has in some way misconducted himself sexually with at least the youngest child.  However, on an interim hearing such as this, the material falls far short of persuading me that such an event occurred.  The fact that the youngest child claims to have a “yucky” secret and had some symptoms pertaining to her vagina, does not go far towards supporting such a conclusion.

11. The Independent Children's Lawyer said that the three children should not be separated as they tend to do activities and things together, and excluding the youngest child could be upsetting and confusing for her.  I accept that.  I am satisfied that the time which the father spends with the children on the Saturdays between now and trial should be with all three children.

12. The final matter relates to the time which the father should spend with the children.  He proposed between 9:00am to 6:00pm, and my enquiry of the mother via her counsel elicited that a return at 6:00pm would not interrupt meal plans in her household on a Saturday night.  I am satisfied that the times proposed by the father are appropriate and in the children’s best interests.

13. For these reasons there will be orders as set out at the commencement of this judgment.        

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 May 2017.

Associate: 

Date: 12 May 2017