D and D - [2003] FMCAfam 401

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & D

[2003] FMCAfam 401

FAMILY LAW – Interim orders – whether supervised contact necessary – whether convincing proof of child’s welfare endangered.

Family Law Act 1975, s.62F(2), ss.62G(2), 65DA(2)

Cowling & Cowling (1998) FLC 92–801

Applicant Father:

BSD

Respondent Mother:

CAD

File No:

MLM 4153 of 2003

Delivered on:

2 September 2003

Delivered at:

Melbourne

Hearing Date:

2 September 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant Father:

Mr. McFarlane

Solicitors for the Applicant Father:

Remington Wright and Co

Counsel for the Respondent Mother:

Ms. R.D. Wiener

Solicitors for the Respondent Mother:

Moores Legal

ORDERS

UNTIL FURTHER ORDER:

The Applicant Father have contact with the child LAD born 27 January 1996 as follows:
(a)
Unsupervised contact each alternate Saturday between 1.00 pm to 5.00 pm commencing 6 September 2003, and each alternate Saturday up to and including the end of January 2004 and; thereafter contact shall occur each alternate weekend from

11.00 am Saturday until 6.00 pm Sunday with changeover to occur at McDonalds, and
(b)On Christmas Day for a period of one hour between the hours of 10.00 am and 12 noon with changeover to be agreed by the parties and in the absence of agreement, changeover to occur at McDonald's; and
(c)On 27 January 2004 with changeover to occur at McDonald's from the hours of 11.00 am to 2.00 pm.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and child LAD born 27 January 1996 attend upon a Counsellor nominated by the Director of Court Counselling in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties shall comply with all reasonable directions as to attendance upon the said Counsellor as and when required by the said Counsellor. The report shall be released 14 days prior to the final hearing date.
Pursuant to section 62F(2) of the Family Law Act 1975 the parties confer with a Counsellor nominated by the Director of Court Counselling of this Registry of the Court to endeavour to resolve the differences between them.
The Application otherwise be adjourned to this court for final hearing on 29 March 2004 at 10.00 am (with an estimated hearing time of 2 days).
Liberty to apply is granted to the parties in relation to matters arising out of these orders.

AND THE COURT NOTES THAT:

Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 4153 of 2003

BSD

Applicant Father

and

CLD

Respondent Mother

REASONS FOR JUDGMENT

This is an application which has been filed by BSD (the Applicant Father) on 26 June 2003. The application has already been the subject of orders made on 11 August 2003 and on that occasion certain orders were made which included orders in relation to interim contact and the issue of residence of the child LAD born 27 January 1996 (the child).
An order was made on 11 August 2003 that there be a report prepared by a psychologist, Dr. DL. When the matter was adjourned to this day and heard as part of a busy duty list it was evident that the parties were unable to reach agreement on interim contact. Although the issue of residence is a matter in dispute, it is clear that the child currently resides with the mother CAD, (the Respondent Mother). It has also been noted that the Respondent Mother is what might be described as and has been the primary caregiver of the child since birth.
The current arrangements between the parties since separation, on

1 March 2003 involves what might be described as a failure to properly communicate with each other and there is certainly a degree of acrimony between the parties.
The parties were married on 7 May 1994. The relationship, however, is longer than that, as they had commenced cohabitation in or about June 1989. It is clear that since the date of separation there has been what can only be described as limited contact. The Applicant Father in his material relies upon two affidavits, an affidavit sworn 20 June 2003 and a further affidavit sworn 8 August 2003. The Respondent Mother has filed and served a response and has relied upon affidavits sworn by her on 4 August 2003 and 2 September 2003. By consent the parties permitted the court to receive as part of this interim hearing a report by Dr. DL which is dated 22 August 2003.
It is proposed by the Applicant Father that until the final hearing or until a further order that there be certain orders in relation to contact between the Applicant Father and the child. As I have indicated, interim orders have already been made in relation to residence and the responsibility for the long-term care, welfare and development of the child.
The matter is now fixed as a two day hearing on 29 March 2004. The Applicant Father's proposal for interim contact provides for contact to occur each alternate Saturday from 1.00 pm until 5.00 pm. Initially it was indicated that the contact arrangement was not to be in place until early December, that is, for a period of approximately three months. The Applicant Father, during the course of submissions has conceded that it might be more appropriate for that contact to occur up until January 2004. Thereafter, in any event, it is proposed that there be overnight contact from each alternate weekend Saturday 11.00 am until Sunday 6.00 pm.
It is not seriously disputed that on Christmas Day there should at least be a one hour opportunity for contact and at some time during the morning which in this case, it seems to me, subject to agreement about changeover, should occur at the very least between the hours of

10.00 am and midday. A further proposal was advanced in this matter that on the birthday of the Applicant Father there be contact for a period from 11.00 am to 2.00 pm.
The significant issue in this matter relating to interim contact arises in circumstances deposed to by the Respondent Mother, particularly in her more recent affidavit material concerning the response and reaction of the child to the previously ordered supervised contact which had occurred on 16 August 2003. A further concern is expressed in relation to what occurred on that occasion when the order clearly required contact to occur at the residence of the supervisors and where it is common ground that in fact the child had been taken to the local park and McDonald's. It was whilst at the local park that the child is said to have been injured in a fall from a swing, and certain consequences followed, including medical attendance. There is a medical report dated 20 August 2003 relating to that incident.
In any event, as a result of that contact and incident the Respondent Mother deposes to what I take to be sincere and genuinely held concerns for the safety and welfare of the child should the child be exposed to what might be described as unsupervised contact. As I understand it, the proposal of the Respondent Mother is that contact should occur, indeed on one occasion each week, but that contact should occur for the maximum period available at an appropriate centre where there will be supervision. It is conceded by the representative of the Respondent Mother that this might involve a delay in making the arrangements of up to four weeks, and it is further conceded that in the circumstances, the duration of that contact in the supervised environment of a centre would probably be no more than two hours.

It is proposed, however, that until the final hearing of this matter that contact should occur on a weekly basis.
It is relevant, in my view, to consider the report which has been received from the psychologist in this matter, that is, from Dr. L.

In the recommendations at page 8 of that report the doctor states the following:
“In the absence of orders by consent, I support B’s suggestion that ‘I’d like to see L a day a fortnight, one week in the school holidays, then overnight starting in November’. I propose the following conditions:
1.B adheres with absolute reliability to the terms of the order, by consent or otherwise;
2.Both parents undertake to protect L from negative comments about the other in front of her;
3.C agrees to undertake and participate in counselling to assist her to feel stronger and more confident of her ability to negotiate effectively with B;
4.The parents utilise a communications book to ensure that all relevant matters are communicated between them in a timely and accurate manner;
5.The family is reassessed in three months as part of a review of the progress of contact.”
I should add that it seems to be common ground that having received that report it would be appropriate that there be a full family report prepared prior to the final hearing.
It is further relevant, however, to note in the report from Dr. L that he makes reference to the allegations, in part, that have been raised in the affidavit material. It is not clear to me that Dr. L had before him at the time allegations of the kind set out in more detail in the affidavits of the Respondent Mother and in particular, the more recent affidavit. It is for the court to consider those allegations in the light of this report.
It is noteworthy that after reciting the background information in relation to the parties that no agreement had been reached about contact after separation. It is also clear that in the current circumstances there has been, at least on one or two occasions, unpleasant events which have caused upset and anguish to the Respondent Mother and where it is clear that on the material before me, including the report from

Dr. L, to some extent those events have been caused or contributed to significantly by the Applicant Father.
It is equally clear, however, that the psychologist had the opportunity to make some assessment of the complaints which had been raised by the Respondent Mother. In my view, it is useful to refer to the discussion in the same report which appears at page 8. In the discussion the author states that:
“It is my view that both parents love L and that, despite her comments, L loves both her parents. It is likely that L has genuinely experienced distress and fear in the context of conflicts between her parents and it is to some degree predictable that in these circumstances, she chose to support her mother's case. Indeed, both parents report that it was C who maintained the family home and provided a substantial proportion of the actual parenting while B was earning an income.
Without being critical of either parent for this sad end to the marriage, it seems that these dynamics have persisted into the contact regime and have prevented contact from being regularised. B still takes the position of having been ostracized through malign influence and C maintains a position of protecting her daughter from distress caused by B.
Fortunately, both parents state that they support a regularised contact arrangement.”
The author goes on to state that:
“Contingent upon the accuracy of the report of the supervisors, it is my view that the proper course is to evolve into a normal contact relationship should as that proposed by B. There appear to be no grounds to suggest a protective risk in relation to L, and it seems sensible to pursue a gradual increase in unsupervised contact.”
Earlier in the report the author refers to both parties. He refers to the Respondent Mother presenting as a ‘loving mother’ who has probably genuinely felt frightened of B and has placed all her ‘covered wagons’ in a circle to defend against potential attack by him. He goes on to say at page 4 of his report:
“C presented as apprehensive and somewhat skittish in her dealings with B.”
He goes on to refer to the support for contact but refers to the reservations expressed by the Respondent Mother.
In my view, it is significant to refer to the findings in relation to the child L in the report where the author states:
“Initially, L refused to be separated from her mother, either in the waiting room or in my office. She acted in a tearful and distressed manner, as if terrified of being physically removed from her mother's grasp. However, it was not possible to dismiss an impression of performance by both mother and daughter. In effect, C clearly conveyed a sense of danger, by impressing upon her in an urgent and oversoliticous manner that she (C) would be just outside. It was not surprising that the child adhered to her mother for approximately five to ten minutes. Having seen parents and children in this situation for approximately 25 years, there is a clear distinction between a parent genuinely, casually and effectively preparing a child for interview, and this situation, in which the child appeared influenced in a manner seemingly designed to elicit distress.
Having said that, there was no indication that C's behaviour was other than genuinely intended as relieving L and achieving the outcome of the individual interview I sought. Nonetheless, there was a clear impression that supported B's contention that C and L had formed an unusually close alliance that presented a united front against B.
In any case, L allowed her mother to leave, and the interview then proceeded unremarkably.”
The author goes on to describe the relationship between the child and her parents.
In my view, on an interim basis it is clear that the court has to have regard to the interests of the child and the other requirements provided by statute. It is equally clear that where a restricted supervised form of contact is urged upon a court, the court ought to have persuasive evidence that there is in fact a position of danger referred to in Cowling & Cowling (1998) FLC 92–801 at 85005–85007 namely whether there is convincing proof the child’s welfare would be really endangered by contact in an unsupervised environment.
In the present case, I note the concern of the Respondent Mother and

I note in particular the concern following the incident that I will refer to as the ‘swing incident’ for which a medical report was attached by way of Exhibit A to the most recent affidavit of the Respondent Mother.

In the circumstances, I am prepared to accept that there has been a technical breach of the order in the sense of a locality of the contact, and that of course is a matter of some concern to the court, particularly as in this case unfortunately it resulted in an incident which seems to have formed a significant basis upon which the Respondent Mother has expressed a degree of genuine anxiety and concern for the health and welfare of the child whilst in the care of the Applicant Father.
However, in all the circumstances I am not satisfied on the material before me that there is convincing proof that the child would be endangered by unsupervised contact with the Applicant Father. Indeed, in taking into account the interests of the child, it is my view that if the conclusion of the psychologist who has had the experience over 25 years of seeing parents and children in this situation is correct, that is, that there has been at least in this case a situation where it might more be regarded as a situation designed to elicit distress, the longer the situation is maintained of supervised contact, or indeed restrictions placed upon contact beyond what normally would be regarded as appropriate contact in circumstances of this kind, then the longer that perception may be allowed to flourish, the longer that distorted view will be maintained.
In my view, even in the short term it is better that the somewhat, jaundiced view of one party towards another, that is, the Respondent Mother towards the Applicant Father, impacting as it does on the extent and nature of contact in the interim, should not continue as it would not be in the interests of the child and indeed may well be detrimental. In my view, the recommendations of the psychologist and the findings are to be relied upon by the court as there is no ground to suggest a protective risk in relation to the child, according to the psychologist. It is, appropriate having regard to the interests of the child and the factors I have to take into account, and having not been satisfied that there is convincing proof the child will be endangered, that I should make an order for interim unsupervised contact of a kind proposed by the Applicant Father, although in this case the unsupervised contact of each alternate Saturday between 1.00 pm to

5.00 pm should be from this Saturday, that is, from 6 September 2003, and each alternate Saturday up to and including the end of January 2004.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 2 September 2003