Crayton and Crayton (No 2)

[2011] FamCA 797

FAMILY COURT OF AUSTRALIA

CRAYTON & CRAYTON (NO 2) [2011] FamCA 797

FAMILY LAW – CHILDREN – Interim hearing

Family Law Act 1975 (Cth)

C v C (1996) FLC 92-651
Cotton & Cotton (1983) FLC 91-330
Goode v Goode (2006) FLC 93-286

APPLICANT: Ms Crayton

RESPONDENT: Mr Crayton

FILE NUMBER: MLC 5146 of 2011

DATE DELIVERED: 3 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Murphy J

HEARING DATE: 3 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barbayannis

SOLICITOR FOR THE APPLICANT: RNG Lawyers

COUNSEL FOR THE RESPONDENT: Ms Stewart

SOLICITOR FOR THE RESPONDENT: Richard Calley Family Lawyers

ORDERS

UPON THE UNDERTAKINGS given, without admission and to be filed in written form within 7 days of the date of these Orders:

A.    On the part of the father that, until further or other order, he refrain from consuming alcohol for 12 hours prior to, and during, any periods of time he spends with the child; and

B.     On the part of the mother that, until further or other order, she will refrain from consuming alcohol to excess when the child is in her care.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

IT IS ORDERED THAT

1. All previous Orders with respect to the Father spending time with, or communicating with, the child E born … 2007 be discharged.

2. The applications of the parties for interim parenting orders be adjourned to 10.00am on 28 November 2011 in the judicial duty list.

3. That the parties, together with their lawyers attend a conciliation conference with a registrar of the Family Court on 14 December 2011 at 9:15 AM.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The child shall spend time with his father for three hours to coincide with a period of time that the father’s child F spends with him on each of 4 and 18 November 2011, with each such period of time:

   (a)To be supervised by a commercial supervisor to be agreed between the parties in writing and failing agreement, to be selected by the mother;

   (b)To occur at or in the vicinity of the paternal grandmother’s residence and in her presence;

   (c)The mother to deliver and collect the child as directed by the supervisor.

2. The parties shall do all such things and sign all such documents as might be necessary so as to respectfully request Ms G, as part of the report process to which the parties have today consented, to interview the child on at least one occasion prior to 4 November 2011 and on at least one occasion subsequent to 18 November 2011 prior to the preparation of her report.

3. In the event that the parties and Ms G agree that Ms G be the supervisor for the purposes of the father spending time with the child, then  this will operate in substitution for the commercial supervisor in paragraph 6(a) of these Orders.

4. That the costs of Ms G and/or the commercial supervisor be paid for from the proceeds of the sale of the former matrimonial home (and if necessary the husband will pay at the first instance and be reimbursed from the said proceeds forthwith upon the same becoming available).

FURTHER ORDERED

1. That the father’s application for communication with the child by telephone between the date of this Order and 28 November 2011 be dismissed and the application for communication otherwise be adjourned to 28 November 2011.

2. That pursuant to Section 68L(2) of the Family Law Act 1975 the child E born … 2007 (“the child”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.

3. That forthwith upon the appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

4. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

5. That the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Melbourne.

6. That pursuant to Section 91B of the Family Law Act 1975 the Department of Human Services Victoria be requested to intervene in these proceedings relating to the welfare of the child E born … 2007.

7. Upon request from the said Director of the Department of Human Services Victoria, the Registry Manager permit inspection of the Court file by a person authorised by the Director of the Department of Human Services Victoria and copying of any part of it to enable consideration of the request to intervene in the proceedings.

AND IT IS FURTHER ORDERED THAT

1. 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 Fact Sheet attached hereto and these particulars are included in these orders.

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER

1. That each of the parties do all such acts and things as may be necessary to consult with Ms G psychologist (or such other psychologist as may be agreed) for the purpose of the preparation of a report in these proceedings (“the report”).

2. That the cost of the report be paid for from the proceeds of the sale of the former matrimonial home (and if necessary the husband will pay at the first instance and be reimbursed from the said proceeds forthwith upon the same becoming available).

3. That upon the proceeds of sale becoming available;

   a.a further sum of $20,000 be paid to the wife; and

   b.the sum of $30,000 to be paid to the husband;

   such amounts to be categorised by the trial judge. 

IT IS NOTED that publication of this judgment under the pseudonym Crayton & Crayton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5146 of 2011

Ms Crayton

Applicant

And

Mr Crayton

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The child E is almost four and a half, born in 2007.  His parents are in dispute about, among other things, his co-parenting arrangements sub-consequent upon their separation, which occurred some 13 months ago on Father’s Day 2010.  

2. The child has not seen his father in that time, save for approximately 15 minutes at a hairdresser’s.  It is conceded by the father that between now and the further interim hearing, which is to take place on 28 November, any face to face time between the child and his father should be supervised.  It is proposed in that respect that the supervisor be the father’s mother, the child’s paternal grandmother.

3. The reason for the concession, which, with respect, was properly made, is the history of family violence and what might be seen to be a significant contributor to it:  namely, the father’s admitted alcohol abuse. 

4. The mother contends that the child should spend no time with, nor communicate with his father in the approximate seven or eight weeks between today and the further interim hearing in this matter.  The father proposes within the context of the supervised time earlier referred to that the child should spend face to face time with him each Saturday between 10.00am and 5.00pm.

5. In the event that the Court was not persuaded that the father’s mother should be a supervisor, it is proposed that there be such other supervisor as might be agreed, and each of the parties agree that in that case, a “commercial supervisor” would be needed.  It is also conceded in that respect that the commercial supervision would be expensive, and, in that context, the father says that time supervised in that manner should be for four hours.

6. The father also seeks an order that he communicate with the child by telephone each Wednesday and Friday at 6 pm with the husband to facilitate the call to a number nominated by the mother.

7. I record that I am cognisant of what the Full Court has said in Goode & Goode.  Firstly, consistent with what an earlier Full Court said in C & C, the Full Court in Goode recognised that the nature of interim proceedings are truncated, and that findings about contested matters of fact can’t be made. 

8. Secondly, that truncated hearing also takes place within a necessarily circumscribed collection of evidence in which none of the evidence adduced by any of the parties can be tested.  As a result, it was said by the Full Court that particular regard should be had to admissions, agreed facts and facts the veracity of which cannot seriously be open to challenge.

9. Thirdly, the Full Court made clear in Goode that, despite the truncated nature of the hearing, the Objects, Principles and Considerations contained within Part VII of the Act remain mandatory and are as applicable to an interim hearing as they are to a final hearing.  In that respect, then, the determinants for what might is in a child’s best interests, which is the guiding principle with respect to interim hearings as much as hearings at a trial, should be section 60CC and the Considerations, both Primary and Additional, contained within it.

10. Accordingly, the criteria laid down in the statute apply, insofar as they are relevant, notwithstanding the narrowness of the nature of interim proceedings, and indeed, in this case, the narrowness of the issue at large between the parties in the period between now and the interim hearing which is due to take place in seven or eight weeks’ time. 

11. The parties are agreed that, whatever might be the genesis of it and the alleged causes, there has been significant family violence perpetrated by the father in this case.  Specifically, an instance of violence that took place on 5 September 2010 was the subject of a criminal charge, assault with a weapon, to which the father pleaded guilty and was sentenced to a community-based order for a period of about six months.

12. It is also agreed that there has been effectively no face to face time between the child and the father for a period of approximately 13 months since separation.

13. It is conceded by the father that there has been a period of alcohol abuse by him, and in that respect, he reads in his case an affidavit by a psychologist, Prof H, who has seen the father about 40 times since 23 March 2010. 

14. In that report, the psychologist refers to two matters of particular significance to the instant proceedings. He refers to the fact that, as a very young boy, the father lived with his parents in a Suburb C hotel, where the father regularly encountered his father’s violence to his mother after periods of drinking, and saw other men use violence when drunk.  His most traumatic memory, the psychologist says, was as a witness to pub violence. 

15. Similarly, the psychologist refers to the father’s alcohol abuse, indicating that the father has

    … resorted to alcohol when he was distressed, and has used copious amounts at various times during the period of [the psychologist’s] contact with him, and at various times as he has tried to cope with his life problems.

16. The psychologist goes on to refer to the father’s dependence on alcohol and his various attempts to address that dependency and its ongoing effects.

17. Fourthly, it is an agreed fact that the child has been impacted by family violence, and it is also accepted on the father’s behalf by his counsel that witnessing family violence has had a negative impact on the child. 

18. Next, it is agreed that, given the child’s age and the length of time over which he has not seen his father, that any reestablishment of time between the child and his father will impact upon him, and this is a factor that needs to be taken into account.

19. Finally, it is agreed that the child has been in the mother’s primary care since separation. 

20. A number of factual matters are pointed to by each of the counsel for the father and mother, the resolution of which, of course, cannot take place within these interim proceedings. 

21. Counsel for the father asserts as a fact that the father had a good and involved relationship with the child prior to separation, notwithstanding the mother’s primary role in caring for him.  Be that as it may, it seems to me, as the concession properly made on his behalf would appear to indicate, that the history of alcohol dependence and family violence must necessarily have impacted upon that relationship.

22. I will deal specifically with one aspect of the case before considering the parties’ other proposals. 

23. It is suggested that the father’s mother should be a supervisor, if indeed any time should be so ordered.  I reject the submission that the grandmother should be a supervisor of time between the father and the child. 

24. The father’s mother is not a deponent to any affidavit.  I don’t see this as necessarily a disqualifying factor; indeed, she sits with him during these proceedings, and various things have been said from the bar table (as to which, see generally Division 12A of the Act) about her willingness and capacity to undertake the supervision role in circumstances where she has 14 grandchildren and 9 great-grandchildren.

25. It is by no means to suggest a criticism of her when I say that I do not consider her a suitable person to supervise the time.  But, I have in mind, in particular, the mother’s plain concerns about the child’s welfare during any time that he would spend with his father, and I have in mind also the fact that, despite the father’s counsel saying that his mother was “sprightly”, that nevertheless and notwithstanding those issues, she is a 79-year-old woman who herself, plainly on the evidence, had been the subject of difficult circumstances involving, a violent and alcoholic husband. 

26. I don’t consider her, in those circumstances, a suitable person to supervise any time between the child and his father.

27. I also take into account in reaching that conclusion the fact that, when the onerous responsibilities attached to a supervisor are taken into account, she remains the father’s mother and a person, therefore, not disinterested in any matters that might arise during periods of time. 

28. The essential issue, then, is whether the father should spend any time with the child in the approximate seven to eight weeks between now and the adjourned interim hearing, or whether there should be periods of supervised time, supervised by a commercial supervisor. 

29. As has previously been indicated, one of the difficulties with commercial supervision is its cost, and that is recognised by the father in terms of the amount of time that would be sought by way of commercial supervision, should that be the order.

30. In arriving at a decision in that respect, although it is of narrow compass, it is, as I have said, nevertheless, constrained by an ultimate finding of best interests dictated by an application of the provisions of Part VII, and in particular, section 60CC. 

31. Plainly enough, each of the Primary Considerations in this case are of fundamental importance.  The need to protect a child from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence is the second of those two primary considerations, and it need hardly be said is a fundamentally important consideration in respect of any application for parenting orders in circumstances such as the present.

32. Here, the issue of safety and protection referred to in that consideration is addressed, at least in part, by the imposition of supervision and, in particular, commercial supervision by, axiomatically, a disinterested party. 

33. The need to protect the child from physical or psychological harm is, it is argued, wider, because, to use counsel for the mother’s words, this is a child whose last memory was of seeing his father being escorted from home by the police and the broader interests of the child need to be considered when assessing this consideration.

34. It is said by counsel for the mother – again, I think, correctly – that, of all people, the father should be aware of the potential impact that witnessing violence has on children, and the fact that those potential ramifications are deep-seated and long-living should also be uppermost in the mind of the Court in making orders.  I have taken into account that Consideration as particularly important. 

35. So, too, it is necessary to take into account the benefit of the child having a meaningful relationship with each of his parents.  It has been said as long ago as Nygh J in Cotton & Cotton that children should have a meaningful relationship only insofar as the relationship has meaning for them.

36. At this particular age and stage of the child’s development, the potential attachment between he and his father is, in my view, a very significant matter indeed;  it pertains not only to the Primary Consideration just referred to, but also to Additional Considerations such as, for example, the nature of the relationship of the child with each of his parents. 

37. The child is at a stage where his attachment to both of his parents is, in my view, a particularly important short, medium and long-term Consideration within the context of these proceedings.

38. I also take into account the fact that, in circumstances where the child has not seen his father for a period of some 13 months or so, and where the last memory of his father might be that which counsel for the mother contends, the likely effect of any changes to his current circumstances is an important Consideration in the case. 

39. Ultimately, however, when the whole of the Primary and Additional Considerations are taken into account, it seems to me that the Court is left with the same central issue:  namely, the balancing of any potential risk for the child in recommencing a relationship with his father, however brief and however truncated, as against any benefit that might derive to the child – note, to the child not the father – from those periods of time.

40. I have not forgotten that I am bound to take into account the provisions of section 60CC(4) and (4A), and, in that respect, I have taken account of the as-yet untested allegations, but nevertheless clear assertions by the father, that he had a good, and indeed, meaningful relationship with his son prior to separation. 

41. Obviously, I have also taken into account the fact that the father hasn’t seen the child for a period of some 13 months. 

42. My decision occurs within a context whereby a highly experienced and qualified social scientist will do a report for the Court by the end of November; that is, within a period of some seven or eight weeks.

43. So too, the Court, by reason of earlier orders made today, has appointed an independent children’s lawyer who has an obligation to inquire into and provide to the Court all such information relevant to an interim determination of the child’s best interests on that later occasion. 

44. In broad compass, counsel for the mother says that the Court ought not take the risk in those circumstances unless and until that report is available and that further information is received.  That might be seen as a submission squarely in support of the proposition that the potential risk of harm to the child outweighing any potential benefit to him of time.

45. On the other hand, counsel for the father submits that this 4½ year old child ought receive the benefit of a relationship with his father, provided the Court can be satisfied that he is, indeed, safe in his father’s care. 

46. That should occur, it is argued, by reason of his age and stage of development and the need for him to develop a meaningful relationship –indeed, a meaningful attachment – with his father.  That might be said to be the argument in favour of the benefit of time being spent between the child and the father. 

1. On balance, I have determined that it is in the child’s best interests to have two short periods of time with his father between now and the interim hearing on 28 November. It seems to me that permitting that to occur within a safe, supervised environment best balances the potential for risk and the potential for benefit to which I have already referred. 

2. I propose, however, to place what might be seen as two further safeguards in place with respect to the child’s best interests. I will specify the dates upon which time is to occur.  I will specify that time is to occur within the family environment comprising the father, his mother, his mother’s home and the child’s sibling, F.

3. I haven’t earlier specifically mentioned the relationship between the child and his sibling because of the circumstance that the child was about three and a half when the parties separated, and there have been, I gather, some difficulties associated with the father spending time with F, not, it seems, unrelated to the same issues that are at the centre of these proceedings.  The evidence before me today, though, is that the father now spends time with F overnight each alternate weekend, and, in the other week, time on Saturday.  The intention of the orders will be that the child spend the time with his father at the same time as F is present.

4. I have also determined to include in the orders further, as it were, checks and balances so as to balance the two central considerations to which I have earlier referred. I will include within the orders a respectful request to Ms G to see the child on at least one occasion prior to the first period of time in the order, and to see him subsequent to the second of the two periods of time, in the order. 

5. I have in mind that this will be not only a means of balancing the risk and benefit to which I have earlier referred, but also as a matter specifically related to attempting to allay any anxiety that might exist on the part of the mother with respect to the time that I propose to order.

6. The father, in addition, applies for an order that there be telephone communication between he and the child. 

7. Given the child’s age and the significant period of time that has elapsed since he spent time with the child, and given the potential for the reintroduction of that time causing at least some unsettling of the child, I do not propose to order telephone communication between the father and the child at this time. The order will be expressed as dismissing the application for telephone communication between the father and the child between the date of this order and 28 November, leaving the issue as potentially live at the next interim hearing on the latter date.

8. The instructors for each of the parties will file an undertaking in the terms earlier indicated in writing within seven days, and the orders will be expressed to be upon the undertakings given, presumably, given without admission by each of the parties.

9. Subsequent to the indication of orders earlier referred to, the parties each sought clarification that the periods of time with the family consultant might, itself, operate as the supervised time. I see no difficulty with that course.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 3 October 2011.

Associate: 

Date:  18 October 2011