Dalliston & Norgate

[2012] FamCA 485

FAMILY COURT OF AUSTRALIA

DALLISTON & NORGATE [2012] FamCA 485

FAMILY LAW – CHILDREN – With whom the child lives – With whom the child spends time – Where the Father filed an Initiating Application seeking parenting orders and subsequently filed a Notice of Discontinuance – Where the Father, Mother and Independent Children’s Lawyer agree that the Father’s time with the child is to be supervised – Where the Father has a history of sex offences involving children – Child to live with the Mother – Mother to have sole parental responsibility – Child to spend supervised time with the Father once each month for a period of two hours – At an appropriate time, an appropriately qualified person to explain to the child why the child’s time with the Father continues to be supervised.

Family Law Act 1975 (Cth)

APPLICANT: Mr Dalliston

RESPONDENT: Ms Norgate

INDEPENDENT CHILDREN’S LAWYER: Jennifer Boulton

FILE NUMBER: ROC 126 of 2009

DATE DELIVERED: 12 June 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 12 June 2012

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Glanville of the Aboriginal & Torres Strait Legal Service (Qld) Ltd

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Cameron

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Jennifer Boulton Solicitor

Orders

IT IS ORDERED THAT

1. The child, L, born … July 2007, (the Child) live with the mother.

1. The mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the Child, save that the mother shall, prior to making the sole ultimate decision about any such issue:

   (a)use her best endeavours to advise the father in writing of the decision intended to be made;

   (b)seek the father’s written response in relation thereto;

   (c)consider, by reference to the best interests of the Child, any such response prior to making any such decision;

   (d)advise the father in writing as soon as reasonably practicable of her ultimate decision.

2. The Child shall spend supervised time with the father at all such times as may be agreed between the parties in writing but failing agreement as supervised by the Town B Children’s Contact Centre (“the Contact Centre”) for a period of two hours or such other time as the Contact Centre may reasonably be able to facilitate on the fourth Sunday of each month.

1. The father’s supervised time with the Child at the Contact Centre shall commence on 1 July 2012 if the Contact Centre can reasonably facilitate such time otherwise the father’s supervised time with the Child at the Contact Centre will commence on Sunday, 22 July 2012 and thereafter on the fourth Sunday of each month.

1. The mother and father must:

   (a)contact the Contact Centre within seven (7) days and arrange an appointment for assessment for suitability if required by the Contact Centre for supervision of the time the Child spends with the father;

   (b)attend any assessment required by the Contact Centre;

   (c)comply with any appointments made by the Contact Centre for supervised time;

   (d)comply with all reasonable rules of the Contact Centre, and

   (e)comply with all reasonable requests or directions of the staff of the Contact Centre.

2. The father must not attend the Contact Centre or its vicinity before the time with the Child is to start and must promptly leave the Contact Centre and its vicinity at the time his time with the Child is scheduled to end.

1. The father shall communicate with the Child as follows:

   (a)by telephone each Wednesday from 3.30 pm, and

   (b)by Webcam communication each Friday from 12 noon with the mother to ensure that the Child is available to receive such communication from the father.

2. The father shall notify the mother by way of text message by no later than 5.00 pm on the Wednesday prior to the scheduled visit on the Sunday at the Contact Centre if he is unable to attend the visit for any reason. 

1. The mother shall use her best endeavours and act reasonably to ensure that Mr R Norgate does not come into contact with the Child.

1. The mother and father shall, within seven days of the date of this order, provide to the other a postal address to which any communication in writing can be delivered and thereafter to notify the other within three (3) business days of any change to the said postal address.

1. The father is hereby authorised to send any postcard, present or other communication to the Child on the Child’s birthday and at Christmas by forwarding such correspondence or present to the postal address specified by the mother as her address for receiving communications from the father.

1. At the earliest possible time the mother shall inform the father of:

   (a)any serious accident or the diagnosis of any medical condition which would prevent the Child from attending school for more than five (5) consecutive school days;

   (b)surgery and hospitalisation and medical treatment for any serious injury, illness or disability.

2. The mother shall, as soon as reasonably practicable but in any event within three (3) business days notify the father in writing as to the name, address and telephone number of the Child’s school, doctors or other healthcare professionals (save for any person providing counselling, training or support to the Child pursuant to paragraphs 15 and 16 of this Order).

1. The production by the father of a copy of this Order shall be sufficient authority for the Child’s school, treating doctors or other healthcare professionals (save for any professional person providing counselling, training or support to the Child pursuant to paragraphs 15 and 16 of this Order) to provide to the father, at his own cost, such report or information as may be requested by him about the Child, copies of the Child’s school reports, any school newsletter and other notices issued from time to time provided that such report or information, newsletter or notice does not contain the Child’s residential address.

1. The mother shall do all things reasonable and necessary to ensure that the Child is referred to Queensland Health’s, Child Youth Mental Health Service (“Mental Health Service”) within three (3) months of the date of this Order for the purpose of:

   (a) the Child receiving such therapeutic counselling as the Mental Health Service determines and recommends to be appropriate for the Child from time to time having regard to her age and stage of development;

   (b) the Child receiving such training in protective behaviours as the Mental Health Service determines and recommends to be appropriate for the Child from time to time having regard to her age and stage of development,  and

   (c) the Mental Health Service, or such other professional person as engaged or recommended by the Mental Health Service, informing the Child at such time as the Mental Health Service, or such other professional person as engaged or recommended by the Mental Health Service, determines to be appropriate having regard to the Child’s age and stage of development, the reasons why the Child is spending supervised time with the father.

2. The mother shall do all things that are reasonable and necessary to ensure that the Child attends:

   (a)all appointments for therapeutic counselling with the Mental Health Service from time to time for the Child and/or with such other professional person(s) as may be engaged or recommended by the Mental Health Service from time to time for the Child;

   (b)all appointments, counselling sessions or other training in protective behaviours with the Mental Health Service from time to time for the Child and/or with such other professional person(s) as may be engaged or recommended by the Mental Health Service from time to time for the Child, and

   (c)all appointments with the Mental Health Service and/or such other professional person(s) as may be engaged or recommended by the Mental Health Service to inform the Child as to the reasons why the Child is spending supervised time with the father.

3. The mother is authorised and directed pursuant to s 121(9)(g) of the Family Law Act 1975 to publish an account of this proceeding by providing to the Mental Health Service, and such other professional person(s) as may be recommended from time to time by the Mental Health Service to provide therapeutic counselling and/or training in protective behaviours to the Child or to inform the Child of the reasons why she is spending supervised time with the father, a copy of the ex tempore Reasons for Judgment of the Honourable Justice Murphy delivered on 12 June 2012, a copy this Order and a copy of the report of Dr M, dated 6 December 2011.

1. The Independent Children’s Lawyer is discharged.

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

1. Any document produced in answer to any subpoena issued in the proceeding is to be returned to the person, organisation or entity producing such document to the Court in answer to such subpoena.

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.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 126 of 2009

Mr Dalliston

Applicant

And

Ms Norgate

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 13 July 2011 the father of L, born in July 2007, filed an Amended Initiating Application seeking parenting orders.  At that time, and thereafter, the father was represented.  On 23 May 2012 the father filed a Notice of Discontinuance. 

2. The proceedings before me were listed for a four day trial, in respect of parenting issues.  The father does the Court the courtesy of appearing, himself, this morning, despite his filing of the Notice of Discontinuance by the practitioners who were previously appearing for him. 

3. Consequent upon the filing of that Notice of Discontinuance, I sought to clarify with him, that he had an understanding of the circumstances that would pertain, in light of his proceedings in this Court being discontinued. 

4. The father indicated, in effect, that he wished the current orders to remain in place.  In that respect, orders were made in the Federal Magistrate’s Court by consent on 2 July 2010, which provided for L to have supervised time with the father at the Town B Contact Centre. 

5. Mr Cameron, who appears as counsel for the Independent Children’s Lawyer this morning, advised the Court (and it is common ground) that a Legal Aid Conference was convened on 23 March 2011 and, at that conference, an agreement was reached between the parties, providing for the father to have communication with L by telephone each Wednesday from 3.30 pm, and by webcam communication each Friday from 12.00 pm, with the mother to ensure that the child was available to receive such communication. 

6. The time between L and the father at the Town B Contact Centre was also there confirmed, and a specific date was provided in the agreement for that to commence.  It is common ground that that agreement was never perfected, in terms of an order of this Court. 

7. Discussion ensued in Court between the parties, as to the terms of orders given what was a broadly agreed position that the father should continue to have supervised time once a month at the Town B Contact Centre, together with the communication earlier referred to. 

8. A number of issues can be seen to arise from the sad circumstances of this case, not the least of which is the provision of a so-called “sunset clause” in respect of supervised time, which Mr Cameron raised during the course of his submissions. 

9. So as to assist the self-represented father, and to clarify the position, which is, in effect, a position that combines the earlier interim consent orders to which I have just referred and the parties agreement consequent upon the Legal Aid Conference, to which I have also earlier referred, I will set out terms of final orders to be drafted and forwarded via email by the Independent Children’s Lawyer, contemporaneously forwarded to each of the parties. 

10. The terms of those orders have been set out in discussions between the bench and Mr Cameron for the Independent Children’s Lawyer, Ms Glanville, who appears for the mother, and the father himself. 

11. It is appropriate for there to be supervised time in this matter, and for that supervised time to continue into the future. 

12. It is not necessary, and I think, in many respects undesirable, to canvas in great detail the circumstances leading to the making of that order in the first instance, or its continuation.  It is, however, necessary to place on the record sufficient material, so as to make it clear why such an order continuing into the future is in L’s best interests. 

13. It might be noted initially that L is not yet five, having been born in July 2007.  The parents met in 2006, when the mother was 15.  She had left home, as a result of a poor relationship with her mother.  At that time the father was on probation, having been released from prison, after a conviction for arson and stalking.  The father has a history of sex offences involving children. In particular, it might be noted that he was incarcerated at a youth detention centre, after conviction on a charge of having anal intercourse with a child under 12. As can be seen from the reference to the youth detention centre, that offence occurred, while the father was yet a child himself. 

14. I referred earlier to the sad circumstances attending the life of each of the parties who L has as her parents.  The father has a history of having, himself, been sexually abused as a child by his father.  To add to that trauma, Mr Dalliston was also exposed to the suicide of his father, at a time when his father was awaiting trial for sexual offences perpetrated against him and other children. 

15. Unsurprisingly, perhaps, the father has been diagnosed with post-traumatic stress disorder, and borderline personality disorder.  Dr M, who prepared a psychiatric report on instructions from the Independent Children’s Lawyer dated 6 December 2011, also refers to what she perceives as being some deficiencies in intellectual functioning on the part of the father.  Again, unsurprisingly it might be thought, the father’s past history also includes alcohol and drug abuse. 

16. The mother, too, has had significant past difficulties.  Perhaps all that need be said is that she was very young (indeed, still a child herself) when L was born, and that the Department of Communities, Child Safety and Disability Services intervened when it was made known to them that she was living with three men, one of whom was the father’s uncle, Mr R Norgate, and a friend of his, Mr T, and all three males were registered sex offenders. 

17. The relationship between the mother and father commenced, as I have earlier indicated, at a time when the mother was in her mid-teens, and had run away from home as a result of difficulties she had apparently experienced with her own mother. 

18. Ultimately, Dr M was of the opinion that:

    It is my view that the father exhibits several risk factors in relation to his parenting ability.  These include his own sexual abuse as a child.  His father’s death by suicide, after a lifetime of sexual and physical abuse of his children.  Mild intellectual impairment.  History of sexual offending in the past.

    It is of particular concern that he now denies his own offending, and displays irritability when others consider this of relevance.

    It is my own view that it would be unsafe for the child to have any contact, other than the supervised contact with the father.  I believe it is important that he continue to undergo counselling, both in relation to alcohol and drugs, and his own numerous personal problems.

19. Very commendably, as it seems to me, the father, who is currently living in Town C on a disability pension is, he tells me today, seeking to obtain employment as a diesel fitter in northern NSW.  That would involve him living at a place some four and a half to five hours drive from Town B. But, he tells the Court that, even in that event, he would still seek to avail himself of the time at the Town B Contact Centre. 

20. As the father’s Notice of Discontinuance implicitly suggests, and as the father has indicated to the Court today by his acceptance of the continuation of a supervised time order, he (at least implicitly) acknowledges the need for L to be in a safe and secure environment, whilst at the same time developing a relationship with him. 

21. Ms Glanville, who appears for the mother, points out that she does so through the auspices of the Aboriginal and Torres Strait Islander legal service.  She submits, properly as it seems to me, that the notion of family is particularly important to those who identify with their Aboriginal heritage. 

22. Notwithstanding that issue, and its profound importance to Australia’s indigenous peoples, Ms Glanville concedes, again appropriately as it seems to me, on instructions from the mother, that the mother will seek to prevent there being any time or contact between Mr R Norgate and L, by reason of the perceived risk represented by Mr R Norgate to her.  

23. A report has been prepared by a family consultant, pursuant to an earlier order made by the Federal Magistrates Court. 

24. That report was released some time ago, it seems in December 2009.  The recommendations of the family consultant can be seen to be consistent with those made by Dr M some time later.  For example, the family consultant indicates that:

    It is the opinion of the family consultant that a very cautious approach is necessary, given [the father’s] history of sexual offences towards children, and especially in light of his inability to accept that he has a problem in this regard.  The family consultant believes that the father’s] involvement in the care of his young nieces is currently placing them at risk, given his criminal history, and that DOCS should be advised as to the current situation.

25. The family consultant goes on to recommend that the father should have supervised time, and made other recommendations that pertain to his prior history of alcohol and drug abuse. 

26. It seems plain to me, on the evidence before the Court, that the order for supervised time, proposed, effectively, by each of the parties and the Independent Children’s Lawyer is entirely appropriate and in L’s best interests. 

27. Mr Cameron properly raises the issue of what can conveniently be described as a “sunset clause,” by reference to Full Court authorities dealing with that issue.  As is made clear in those authorities, in the usual course of events, the Court ought have some concern about the continuation of an order for supervised time, without there being placed any limitations upon it. 

28. Those authorities are, however, all to the effect that, ultimately, such a decision ought be made by reference to the best interests of the particular child, in that particular child’s particular circumstances. 

29. The arguments in favour of placing a limit upon supervised time are both obvious and have been well-ventilated.  However, in this case, it seems to me, that there are a number of factors that ought persuade the Court to not place any arbitrary limit on the supervised time in the manner suggested. 

30. First, and most obviously, L is yet very young.  Secondly, as the very brief outline of the facts and circumstances just given might indicate, the journey for her has already been a somewhat difficult one, and much might yet happen in this young child’s life that might need the intervention of persons or bodies other than the parents.  In short, it seems to me there is a high probability of other circumstances intervening in L’s life, in any event. 

1. Next, although an arbitrary time might be imposed upon supervised time, the net effect of doing so would, in light of the particular circumstances of this case, almost certainly involve further proceedings in this Court if time between the father and L was to continue in some form after the time limit imposed. 

2. In addition, the arbitrariness of any period that would be imposed is, of itself, in the particular circumstances of this case, a pointer against it being ordered, particularly where those include orders that will also provide for L to receive appropriate counselling at a time and in a manner consistent with her age and stage of development.

3. For those reasons, I am not persuaded that I should place a so-called “sunset clause” on the order for supervised time.  Like any parenting order, that order can be the subject of an application for variation, should the circumstances then applicable point to such a course being appropriate. 

4. Additional orders sought by the Independent Children’s Lawyer are effectively not challenged by either of the parties.  It is suggested that there be the form of counselling or therapy to which I have just made reference, and it seems to me that in light of the young age of the mother, the parents’ significantly compromised histories, and the journey that L has already undertaken, that the proposed therapy or counselling is plainly in her best interests. 

5. As a particular subset of that, it is suggested by the Independent Children’s Lawyer that an appropriately qualified person explain to L, at an appropriate time, why it is the time between she and her father has been and continues to be supervised. 

6. It seems to me likely that, if, as hoped, a therapeutic relationship is developed with a counsellor pursuant to the counselling to which I have just made reference, that issue might form part of that process. If not, the counsellor would – him or herself – recommend an appropriate person and an appropriate time, at which that specific issue might be addressed.  In either event, it seems to me that it is appropriate to leave a decision about the manner and timing of that information being communicated to L up to the professionals who might work with her, as distinct from the Court today choosing an arbitrary time at which that should occur. Orders will be made giving effect to that. 

7. Orders are also sought, appropriately as it seems to me, pursuant to section 121(9)(g) of the Act, that an account of the proceedings – namely, these reasons, Dr M’s report and the orders ultimately made to be published to the person undertaking the therapy or counselling, to which reference has already been made, and, again, an order in those terms is entirely appropriate.

8. For those short reasons then, I will make orders in the terms of those outlined during discussion with the parties and counsel for the Independent Children’s Lawyer.

9. I will direct the Independent Children’s Lawyer to forward settled minutes of order, giving effect to the orders, which I have outlined during the course of proceedings this morning and in these reasons, by email within seven days, contemporaneously forwarded via email to each of the parties and solicitor for the mother.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 12 June 2012.

Associate: 

Date:  27 June 2012