D and M - [2003] FMCAfam 342

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & M

[2003] FMCAfam 342

FAMILY LAW – Child – interim hearing – not appropriate to proceed with final hearing – supervised contact pending final hearing – unrepresented father – father not exercised supervised contact as ordered earlier – appointment of child representation.

Family Law Act 1975

Applicant:

S D D

Respondent:

R M

File No:

MLM 8944 of 2002

Delivered on:

31 July 2003

Delivered at:

Melbourne

Hearing Date:

31 July 2003

Judgment of:

Phipps FM

REPRESENTATION

Mr S.D. D appeared on his own behalf

Counsel for the Respondent:

Ms C. Haag

Solicitors for the Respondent:

Jennifer A. Feeney & Co

ORDERS

THAT both parties forthwith make application to the Berry Street Contact Centre, Watsonia for assessment as for the child J R M born
6 March 1999 to be subject of supervised contact at that Centre at times and dates to be advised by the Centre.
THAT upon the parties and the said child being assessed as suitable for the Berry Street Contact Centre contact programme, the Father have contact to the said child until further order at the Centre at times and dates to be advised by the Centre but if able to be provided by the Centre for 2 hours each alternate weekend.
THAT by consent the Father have contact with the said child on
two occasions in the month of August 2003 supervised by the Maternal Grandparents at a time and place nominated by the Maternal Grandparents but not to take place if contact at Berry Street has commenced.
THAT pursuant to Section 68L(2) of the Family Law Act 1975 the child J R M born 6 March 1999 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.
THAT forthwith upon appointment by the said Victoria Legal Aid or otherwise the Child’s representative file a Notice of Address for Service.
THAT within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the Child Representative copies of all relevant documents relied upon.
THAT pursuant to Section 62G(2) of the Family Law Act 1975 the parties and Child J R M born 6 March 1999 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 an updated Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Counsellor as and when required by the said Counsellor. Such report to be released prior to the 7^th January 2004.
THAT the further hearing of this matter be fixed for a 2 day final hearing on 7 January 2004 at 10.00am.
THAT each party file and serve any further material upon which they seek to rely no later than 28 days prior to the final hearing.
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 8944 of 2002

S D D

Applicant

And

R M

Respondent

REASONS FOR JUDGMENT

This is an application which concerns a child of the parties, J R M, born 6 March 1999. The parties commenced a relationship in about 1997 and separated in late 1998. In the affidavits before the court there is dispute about what took place during the relationship between the parties and there is dispute about some things which took place subsequently.
The Mother alleges violence and drug taking by the Father. The Father disputes that. There is an allegation by the Mother that quite some time after separation the Father attempted to take the child. That circumstance has not been investigated. I record it without making any findings to show the nature of part of the dispute which is before the court.
Procedurally what has happened is this. This is the Father's application. It first came before the court on 26 November 2002 and at that stage both parties were represented. There was a consent order made that until further order the child should live with the Mother, that there be contact on Christmas Day from 10.00am to 11.00am and that the parties make application to Berry Street contact centre, W, for assessment and then subject to that, for there to be contact at the Berry Street family centre. There was also an order for a family report to be prepared pursuant to section 62G(2) of the Family Law Act 1975. It was then fixed for hearing on 2 July 2003.
The Christmas Day contact took place but the rest of the contact did not take place. The Father did not follow through with the process. In his discussions with the counsellor who has written the family report, he suggests that for some reason he was unhappy with that process. The report is dated 30 June of this year, so it was finished only just before the application came back before the court on 2 July 2003. It recommended that there be supervised contact for two hours for a two‑month period increasing to half-day contact for a further two months with a supervisor to be agreed between the parties and after that, it should move on to two months of weekend contact on consecutive days in preparation for overnight visits commencing after that. The final paragraph of the counsellor's report is this:
It is the opinion of the counsellor that J needs to learn to trust Mr D in order for him to rebuild a relationship, secure in the knowledge that the relationship will not be broken again in the future. For this reason, it is important that Mr D displays a commitment to a gradual reunification with J such as outlined in the schedule above.
It came before me on 2 July 2003. The Father was then unrepresented. The report had only just been received and indeed the Father did not receive it until he arrived at court that morning. Unfortunately the business of the court was such that the case could not be heard on

2 July 2003 and it was adjourned until today, 31 July 2003. It was not reached on 2 July 2003.
The position now is, I am informed and it is common ground, that subsequent to 2 July 2003 the Mother offered two periods of supervised contact to the Father supervised by her parents, that is, the maternal grandparents which took place on 12 and 26 July 2003 for a one-hour period at a McDonald's restaurant, supervised by the maternal grandparents. The contact took place on those two days. There is no suggestion that it proceeded any other way than satisfactorily.
The Father's position is that he does not consider supervision necessary. I have endeavoured to explain to him why in circumstances such as this with a four-year-old where there has been a long period of no contact and where the Mother is expressing anxiety about how the child might react to the Father and how the Father might deal with the child, that a gradual introduction to contact as recommended by the counsellor is generally desirable. I have endeavoured to explain to him that it is not necessarily a criticism of him but there are real benefits in the primary carer, in this case the Mother, not having an anxiety about the resumption of contact because the anxiety can transmit itself to the child. That can affect the way the child approaches the contact with the Father and that is a hindrance to re-establishing the bond between Father and child and that is not in the best interests of the child.
The best interests of the child is the paramount consideration (section 65F Family Law Act). I am conscious of the objects of the Act set out in section 60B, which includes that a child, unless it is contrary to the child's best interest, is entitled to contact with parents and to have both parents involved in the child's upbringing. Section 68F(2) sets out matters to be considered when determining the best interests of the child.
The Father is unrepresented. When I investigated what was before the court and what material is relied upon and who was available to give evidence, I found there was an affidavit by Ms C S which was sworn in October last year. At the time she said she had been the de facto partner of the Father for two and a half years. When the Father put to me his primary position that supervision was not necessary, I said it was possible that the court could come to a conclusion that supervision might be necessary and asked who was he proposing if that was the case. He said he was proposing Ms S, although he said they were no longer living together. Ms S was not at court. He said she was sick but he could have her at court at 2.15pm. However she does not have an affidavit about the current circumstances, therefore the Mother and her legal advisers would have no notice of the current circumstances of the supervisor. Also, significantly, Ms S has not been seen by the report writer.
The conclusion that I have come to, which I have discussed at some length with Mr D and with Ms Haag who appears for the Mother, is that I should not proceed with a final hearing but deal with this application on an interim basis. I consider that to put in place an interim arrangement is the most likely way to start the task of re-introducing the child and proceeding on with re-establishing the bond between child and Father.
To proceed on with the final hearing today and rule on the Father's application for unsupervised contact might reach the result that I would determine, indeed be quite likely to determine, that immediate unsupervised contact was not in the child's best interests. I would then be faced with having to determine what supervision there should be. The Father is proposing Ms S. There are the unsatisfactory aspects of the state of the preparation for the case in relation to Ms S that I have described and I could get to the conclusion that the only thing to do would be to dismiss the Father's application as it then stood. That is in nobody's interest, least of all the child's.
What I propose because I consider this is in the best interests of the child, is to order a period of four months supervised contact commencing as soon as possible at the Berry Street contact centre, with appropriate orders directing the parties to make the necessary application and attend the intake centres. Through Ms Haag, both the Mother and the maternal grandparents have proposed two occasions of contact for an hour each in August similar to that which took place in July. They cannot yet nominate the dates because they are not sure about their other commitments, they have some visitors coming, so I will make an order which allows for that.
I can refix the hearing for January, which I will do, and I also will appoint a child representative and order an updated family report. A child representative is appropriate because of the nature of the allegations I have referred to, the allegations of violence and drug taking and the subsequent incidents after separation. Because the Father is unrepresented, I should emphasise that I say I am only acting upon the allegations. I make no finding at all whether those allegations are correct or not. This is an interim hearing. The fact that there are the allegations is sufficient for me to act in the appointing of a child representative.
There is also obvious conflict between the parents. The recommendation is for two months of two-hourly supervised contact followed by two months of half-day supervised contact by a supervisor to be agreed. The contact centres do not offer half-day contact, only two-hour contact. There is not a supervisor agreed between the parties for half-day fortnightly contact and given the history, it seems unlikely that a supervisor would be agreed between the parties without some assistance.
I will order four months of two-hour contact because that makes it certain that at least that contact will take place. It may be that with the assistance of a child representative, additional contact can be agreed between the parties. But as I explained to the Father, if I made an order now for two months of two-hour supervised contact followed by two months of half-day supervised contact by a person to be agreed, it might be that that two months would not take place and the whole process might fall apart. So ordering four months of supervised contact at a contact centre means there is certainty.
I should add for completeness that having discussed this proposal, Ms Haag has taken instructions and the Mother consents to the order that I am proposing. The Father does not. He has expressed the view that he does not consider supervision as necessary. As I said, I have endeavoured to explain to him that having supervision is not a criticism of him, it is something which in these circumstances I consider in the best interests of the child.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: