DAINS & DAINS

[2020] FamCA 851

FAMILY COURT OF AUSTRALIA

DAINS & DAINS [2020] FamCA 851

FAMILY LAW – CHILDREN – interim – where the mother seeks the child’s time with father remain supervised – where the father seeks time progress to unsupervised and overnight – where the Independent Children’s Lawyer contends that time should move to unsupervised – further interim orders made until a final hearing in six months for progression of unsupervised and increased time with the father.

Family Law Act 1975 (Cth) ss 60CC

Goode & Goode (2006) FLC 93-286
Banks & Banks (2015) FLC 93-637
Hall & Hall (1979) FLC 90-713

APPLICANT: Mr Dains

RESPONDENT: Ms Dains

FILE NUMBER: TVC 1383 of 2018

DATE DELIVERED: 4 September 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 1 September 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr J Thomas
Stevenson & McNamara Lawyers

SOLICITOR FOR THE RESPONDENT: Mr B Marr
Mobbs & Marr Legal

INDEPENDENT CHILDREN’S LAWYER: Ms M Wallace
Legal Aid Queensland

Orders

1. That Orders 1, 2, and 3 of the Orders made 25 February 2020 are discharged.

Updated family report

1. That a Family Consultant be appointed by the Senior Family Consultant of the Family Court of Australia Townsville Registry in this matter to prepare a family report (“report”) pursuant to s.62G of the Family Law Act 1975 (as amended) (“the Act”).

2. That in addition to reporting any matters that the Family Consultant considers important to the welfare of the child, Z born … 2014 (“the child”) and the factors contained in s.60CC of the Act the following opinions should be included:

   (a)what, if any, interventions might assist the parties to achieve a cooperative parenting outcome; and

   (b)what, if any, interventions would assist the parties to resolve potential disputes about the parenting orders or the changing needs of the child in the future.

3. That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the child if the Court did not reach a conclusion which accorded with the child’s views.

4. That the parties shall attend appointments with the Family Consultant on a date and time to be advised (anticipated to be on or around 26 October 2020 in Townsville) by the Family Consultant and they shall facilitate the attendance of the child for those appointments (unless otherwise advised).

5. That the Family Court of Australia be responsible for payment of the cost of preparation of the report.

6. That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.

7. That the Family Consultant has liberty to list the matter for further directions and for the purpose of that mention, the Family Consultant and the parties have leave to appear on the telephone.  For the purpose of listing the matter the Family Consultant has leave to contact the Associate to the presiding Judge.

Release of report

1. That upon receipt of the report, the Court will provide a copy to each party (or their solicitor, if any) and to any Independent Children’s Lawyer in the proceedings.

2. That unless a party objects, in writing, within fourteen (14) days of the date of releasing the report, copies of the report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

   (a)A Children’s Court;

   (b)A child protection authority;

   (c)A State or Territory legal aid authority; and

   (d)A convener of any legal dispute resolution conference.

3. That unless otherwise ordered, no person shall release the report, or provide access to the report to any other person.

4. That each party file and serve by 4.00pm on 27 November 2020 a short Affidavit setting out:

   (a)how the time ordered today has progressed; and

   (b)any variations to current interim orders, including Christmas arrangements they seek.

5. That these proceedings be adjourned for Case Management Hearing and further interim determination and trial directions at 9.30am on 7 December 2020 in the Family Court of Australia at Townsville.

Trial date

1. That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 1 March 2021 in the Family Court of Australia at Townsville.

THE COURT ORDERS UNTIL FURTHER ORDER:

Time with the father

1. That the child shall spend time with the father at the following times unless otherwise agreed in writing:

   (a)Until Saturday, 26 September 2020:

   (i)Each alternate Wednesday from 3.30pm to 6.30pm;

   (ii)Each Saturday from 9.00am to 2.00pm;

   (b)Commencing Saturday, 26 September 2020, each Saturday from 9.00am to 3.00pm;

   (c)Commencing Saturday, 24 October 2020 and each alternate weekend thereafter from 9.00am to 4.00pm Saturday and 9.00am to 4.00pm Sunday of that weekend.

2. That unless otherwise agreed in writing, changeovers shall occur at McDonalds Suburb H and:

   (a)the parents may elect for a person known to the child to perform changeover on their behalf; and

   (b)The adults facilitating changeovers shall treat each other with respect and not engage in any conflictual conversations at changeover.

3. That the parents are restrained and an injunction issues restraining the parents from:

   (a)making any derogatory or hurtful remarks about the other parent or their partner and household to or in the presence of the child; and

   (b)discussing these Court proceedings or other issues of adult conflict to or in the presence of the child.

4. That the father is restrained and an injunction issues restraining him from bringing the child into physical contact with the paternal grandmother.

5. That the Independent Children’s Lawyer have liberty to provide to the child’s counsellor, Mr B a copy of:

   (a)the Reasons for Judgment delivered 4 September 2020;

   (b)the family report dated 4 September 2019; and

   (c)any updated family report, when available.

6. That the Independent Children’s Lawyer have liberty to apply.

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 Dains & Dains 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 BRISBANE

FILE NUMBER: TVC 1383 of 2018

Mr Dains

Applicant

And

Ms Dains

Respondent

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. The competing parties in this matter, being the Applicant father Mr Dains and the Respondent mother Ms Dains, are the biological parents of a child, Z, born in 2014 and now aged six years.  The evidence is that the parties separated on or about 8 January 2017.  Clearly, at that time, the child had not yet reached his third birthday.

2. It does not appear to be in dispute that since that time, when time occurred, it has always been supervised, if not by the mother, then at least by her mother, the maternal grandmother, Ms C.

3. There were periods where there was no time occurring, and that appeared to be the catalyst for the father commencing proceedings in the Federal Circuit Court of Australia in October 2018.  Thereafter, Orders have been made by judicial officers in the Federal Circuit Court of Australia, all of which were for time between the father and Z to be supervised.  The current supervised Orders were adjusted by agreement between the father and the mother (apparently through the maternal grandmother) so that currently the child spends time with the father in a public place, but supervised by Ms C, each Wednesday from 3.30pm to 6.30pm and each Saturday from 9.00am to 1.00pm.

4. It has been a feature of this case that the child has, for some time, been involved in counselling, and I will soon refer, shortly, to some of the counselling notes produced by the Independent Children’s Lawyer (“ICL”), and that is Exhibit 2.  Those notes give some background to a report prepared by psychologist Mr B annexed to the mother’s Affidavit and dated 7 May 2020, to which, again, I will refer shortly.

5. In any interim hearing, the proceedings are truncated.  The Court is not in a position to make findings of disputed facts.  However, that does not mean the Court is not required, when considering the paramount consideration, which is the best interests of the children - in this case the child Z -  allegations made by the parties and how those allegations shape orders which are in the best interests of the child.  As will become apparent, the competing proposals between the parties – which I will next mention – has as its core area of dispute whether the Court should move from supervised time, which is what has been occurring since separation, and particularly since Orders of the Court were made, to unsupervised time.

6. I also, of course, identify that, although the decision in Goode & Goode (2006) FLC 93-286 is the often quoted decision in relation to interim hearings, the Full Court in Banks & Banks (2015) FLC 93-637 made it clear that in determining the best interests of the child, it is not necessary to deal with every primary and additional consideration, but in the truncated nature of interim hearings to focus on the areas of dispute which are likely to shape the order that is in the best interests of the child on an interim basis.

7. It is also appropriate to acknowledge that the Court has had the benefit of a family report prepared by Family Consultant Mr D dated 4 September 2019 which, coincidentally, is 12 months old as at today.  That report had certain recommendations contained at paragraphs 105 to 113 of the report, and of those particularly at paragraph 107 the recommendation of the report writer was that:

   “Z had supervised time with Mr Dains as per the mother’s proposal with significant alterations to be considered by way of updating the family report after 12 months.”

8. In exchanges with the representatives for the parties, particularly Mr Marr representing the mother, the Court reminded the parties that it has been the jurisprudence in this jurisdiction, at least since Hall & Hall (1979) FLC 90-713, that the Court is not bound by a family report or the recommendations of the report writer. In any event, I do not have available evidence by way of an updated report from a report writer, although I have communicated to the parties, consistent with the case management focus of this Court to provide the parties with an opportunity for trial commencing 1 March 2021 in Townsville, that as a result of an order I will be making today for the preparation of a updated family report under Section 62G of the Family Law Act1975 (“the Act”), that a Family Consultant, Ms F in the Townsville registry, anticipates conducting interviews and observations on 26 October 2020, and will have a family report, which hopefully will be of assistance to the Court and the parties, and may narrow and/or perhaps even resolve the issues, available within 14 days or so thereafter.

9. It is for that reason that the orders I pronounce today will identify a case management hearing to be conducted before me, in person, in the Townsville registry when I am sitting there, at 9.30am on 7 December 2020.

10. As I have already indicated, the competing proposals bring into focus two areas of dispute.  Firstly, whether, as the mother proposes, the time should continue as it is currently ordered, with continued supervision of the father’s time by the maternal grandmother, or whether the time should be unsupervised.  The second issue in dispute was, on the material, whether time should progress as the father hoped, and set out in his case outline initially, to unsupervised time including overnight time.  That proposition was not supported by the ICL, although the ICL does support moving to unsupervised time immediately.

11. As I recall the submissions of the solicitor for the father, he no longer pressed for the extended overnight time that he initially identified as his preference, but in any event, as will soon become apparent, I adopt the position of the ICL that moving to unsupervised overnight time is premature at this stage.

12. Having identified the competing proposals, the real issue is a tension between the two primary considerations, namely, section 60CC(2)(a), which requires the Court to consider the benefits of the child of having a meaningful relationship with each of the parents, and section 60CC(2)(b), which, as a result of section 60CC(2)(c), must be given greater weight, namely to protect the child from harm and exposure to harm. It is not currently in dispute that Z will continue to live with the mother.

Meaningful relationship

1. The parties’ proposals seem to acknowledge that it is in the best interests of Z that he have a meaningful relationship with his father and that that would be in his best interests. I say that because, although the mother persists with her concerns about time moving to unsupervised time, she does not suggest that Z’s time with the father cease or stop. Meaningful, within the Act, does not always mean optimal. More time does not always increase the meaningfulness of time. However, I am satisfied that in this case, provided the Court is satisfied that the child is not likely to be at such a risk that unsupervised time would be contrary to his best interests, a child at this age should be having unsupervised time so that the opportunities to engage in activities likely to develop a bond and relationship between the child and (in this case) the father and, therefore, become more meaningful, can occur.

2. It is apparent from the evidence relied upon by the mother, particularly in circumstances where she makes limited statements as to how the relationship between the child and the father has progressed during the period of supervised time (and a similar observation is made in respect of the evidence of Ms C, the supervisor), that the mother has almost entirely concentrated her affidavit on the concerns that she still holds about the father.  As a result, the majority of this Judgment seeks to deal with those concerns, noting as I have, that I am not in a position to make final findings in respect of any of those concerns at this stage.

3. Of course, and it might be expected, that the father gives evidence in his affidavit that his relationship with Z has improved; continues to grow, and is demonstrated to be of some enjoyment to the child.  He says that extending the time and reducing the limitations, that is, that reduced time with supervision, in particular, would create a benefit for the child, of allowing him and the child to do other activities for longer periods which will improve the opportunity for Z to develop the relationship with his father.

4. I do not ignore that Ms C, in her evidence, has indicated that through the period of her supervision there have been conflicts between her and the father, that might be called, at times, hostilities.  However, they seem to have reduced as time has moved on, and Ms C’s commitment to her grandson and continued supervision has been important support for the mother’s concerns to date.

5. I accept that as a result of the history of conflict, both before separation and since, including a confrontation at changeover, that the mother has concerns.  I am not satisfied that there is really anything more that this Court could say that would expunge the concerns from the mother’s beliefs.  As I say, in her affidavit she sets out her concerns in some detail, and in exchanges with her solicitor Mr Marr, it is clear the mother is firmly entrenched, it seems to me, into resisting any unsupervised time occur and suggests that caution should be undertaken as only a trial may deal with her concerns.

6. However, whilst I did not ignore the mother’s concerns and the risks which she identifies, at this stage, and on the evidence, it is appropriate to at least examine that evidence to see whether it raises such a clear concern of unacceptable risk at this stage to outweigh the benefits that will clearly flow to the child of increased and unsupervised time.

Sexual abuse allegations

1. It appears from the evidence that the first allegation, such as they were, arose from play therapy with an officer of J Services and reported to the Department of Child Safety, Youth and Women (“the Department”) in or about October 2018.  They were mandatorily reported by the counsellor.  There is no evidence that prior to the play therapy comments of the child that the child had made any disclosures to the mother.  Considering that all the time that the child was spending with the father was supervised, the opportunity for any sexual deeds by the father towards the child could only have occurred if the maternal grandmother’s supervision was deficient in some way.  Even if I accept that the father would use the limited time he had to spend with the child to act inappropriately with the child, I have got to say there is nothing in the evidence, and even the comments made by the child’s current counsellor, that would suggest that the grandmother is other than a very vigilant, attentive and observant person. The “disclosure” captured was investigated by both the Department, who did not substantiate risk, and to some degree by the Queensland Police Service, who laid no charges.

2. After these comments were made during play therapy, the mother says, subsequently, whilst she was dressing the child, that the child said to her words to the effect that the father puts his hand on his penis.  The context for, and issues raised leading up to that alleged disclosure, are not certain.  But even if I accept, as I am prepared to do today, that those words were spoken by the child, the words are as consistent with normal parental care as it would be for any sinister motive of the father sexually abusing the child for his gratification.

Family violence

1. There is in existence, and I take into account, a Domestic Violence Order made on 27 February 2019 that does not expire until 31 January 2022.  I note the restrictions contained in the Order, including, as was brought to my attention during submissions, a restriction on the father attending the child’s school.  Unlike the other orders about approaching the mother or spending time with the child, which remain subject to, inter alia, orders made by a Court, order 7 of the Domestic Violence Order has no such reservation.  Although it may be open to the Court to seek to vary that order, in my view, at this stage, by not expecting, on an interim basis, changeovers at school, which at one time the ICL thought was an appropriate venue for changeover, a potential risk to the father of a breach of a Domestic Violence Order cannot arise.

2. I have had the opportunity to read the notes of the counsellor, Mr B, that have been tendered now as Exhibit 2.  The notes also seem to relate to earlier consultations the child had, I infer, with Ms G.  Although in his report of 7 May 2020, Mr B – and that report is MMV4 – refers to a assertion by Z that he had been, at different times, hit, kicked, punched or slapped on one identified occasion (9 April 2020, when it is said to have occurred on the last visit), such comments have to be seen within the context of such significant physical abuse occurring during a supervised visit that should have been observed by the supervisor Ms C.

3. The notes of Mr B are really just jottings of some comments allegedly made by the child.  I am prepared to accept that the child was accurately recorded, but without further context, it is hard to give them significant weight.  I note, for example, that the child says that the grandmother did not see the abuse.  I do not know how the child could know whether the grandmother saw or did not see the abuse where the grandmother makes no comment of having had any discussion with the child about the alleged abuse.  I also note – and this is a recurrent theme in some of the material, including the report – that the child has expressed some concerns that the father may not return the child to the mother.  There is no evidence that the father has ever said to the child that that is his intention.

1. I accept that the history of parental conflict involves family violence, including the events that caused the father to be convicted of four breaches of a Domestic Violence Order on his own admission, the father says involving text messages and a verbal disagreement at a changeover.  However, I cannot discount the possibility that this young child, who was less than three years of age at separation, may recall witnessing some pre-separation conflict, anymore than I can discount that the child has heard comments from the mother or members of her family about past events.

Drug use

1. Although there has been a suggestion that both parties participated in the use and misuse of illicit substances in earlier times, and despite a curious test result, which at one level suggests that the father submitted a false urine sample (some form of non-urine/synthetic substance) for testing, which the father denies, the overwhelming evidence is that the parties are not using illicit substances now.  The father swears that he has not used illicit substance for 14 months.  In his submissions, properly, Mr Marr did not press for a finding or a concern that the father is affected by illicit substances generally at this stage.

2. As indicated, I have read the counselling records of Mr B.  I note, with some concern, that he said that he was engaged because the child was suffering from anxiety and ADHD.  There appears to be no evidence that the child has been diagnosed with ADHD.  The general practitioner’s updating letter dated 6 May 2020 seeking a further mental health plan reveals a patient history as:

   “Parents separated; difficult relation between them; history of abuse, especially psychological; afraid of father; afraid he will take him away.”

3. Noting this instruction from the general practitioner to Mr B, the source of his comment in his report that Z was being referred for managing visits with his father and past “physical, mental and sexual abuse”, is concerning.  He does not provide a source, which clearly does not come from the notes of the doctor, as to why he thought the child was being referred to him to manage, in the context of past physical, mental and sexual abuse.  That may be a matter for the trial.

Discussion

1. Having made the observations about the ongoing concerns the mother has, and the basis for them, I can understand the different positions the parties have taken.  As I say, the ICL supports moving to unsupervised time.  The orders which I propose to make provide for unsupervised time, but at a slower pace and in a different way than those contended for in the ICL’s submissions.

2. The mother’s approach and the authorities referred to by Mr Marr in his detailed and considered submissions urges a more cautious approach that, in my view, inhibits the child from the opportunity to develop a meaningful relationship with the father.  And although the Court can never say, in any parenting arrangement, that a child is risk free, in my view, on the analysis of the evidence to date, the risks as identified do not outweigh, in my view, the need to progress in an unsupervised way.

3. The father’s proposal, in my view, is too fast and too far.  Certainly, equal time is not indicated at this stage as being either in the child’s best interests, or reasonably practicable.

4. Subject to hearing further submissions as to two orders I would seek to make, which do not appear to be previously made, probably because all time has been in a supervised environment, the Court will order that an updated report be prepared, already having indicated that it is anticipated that the report interviews would take place on or about 26 October 2020 in Townsville, and a report available within 14 days thereafter.  The matter will be listed, as I say, before me on 7 December 2020 in Townsville for further case management, further interim determination and trial directions.

5. I will require the parties, by 27 November 2020, to file short affidavits setting out:

   a)how the time ordered today has progressed, and

   b)any variations to time interim orders, including Christmas arrangements, they seek.

6. I propose to order that the child shall spend time with the father at the following times, unless otherwise agreed in writing:

   a)Until Saturday 26 September 2020:

   i)each alternate Wednesday from 3.30pm to 6.30pm;

   ii)each Saturday from 9.00am to 2.00pm.

   b)Between 26 September 2020 and 24 October 2020 each Saturday from 9.00am to 3.00pm;

   c)Commencing Saturday, 24 October 2020, each alternate weekend thereafter from 9.00am to 4.00pm Saturday and from 9.00am to 4.00pm Sunday, of that weekend.

7. I propose to order that, unless otherwise agreed in writing, changeovers will occur at McDonalds Suburb H and:

   a)the parents may elect for persons known to the child to perform changeover on their behalf, and

   b)the adults facilitating changeover shall treat each other with respect and not engage in any conflictual conversations at changeover.

8. Subject to hearing further submissions, I propose to make the following injunctive order:

   a)That the parents are restrained, and injunction issues restraining the parents from:

   i)making a derogatory or hurtful remarks about the other parent or their partner and household to, or in the presence of, the child, and

   ii)discussing these Court proceedings or other issues of adult conflict to, or in the presence of, the child.

9. I propose to order the ICL clearly provides the children’s counsellor, Mr B with:

   a)a copy of the Reasons for Judgement delivered today;

   b)the family report dated 4 September 2019, and

   c)any updated family report when available.

10. I propose that the ICL have liberty to apply.

11. I will make an order that the father shall ensure that the child does not come into contact, when the child is in his care, with his mother, but I want to make it clear that the evidence to sustain that might be very difficult to support, if I had some actual evidence from the grandmother.

12. I considered whether it would be appropriate to order the father to actually attend on Mr B.  The evidence in the report of Mr B is that he is prepared to speak with the father.  It seems to me that the father should initiate, for the reasons during the exchanges that were identified, an opportunity at his cost, to speak to Mr B about the progress of Z.  Leaving that for a couple of weeks until the ICL has been able to provide these reasons and the first family report to Mr B might be appropriate.  The reason I choose not to make an order is that, in my view, it is some action which the father should, of his own volition do, not merely to comply with an order of the Court but because it is likely to assist him to understand his son better.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 4 September 2020.

Associate: 

Date:  7 October 2020