Davenort and Garrod

[2016] FamCA 93

FAMILY COURT OF AUSTRALIA

DAVENORT & GARROD [2016] FamCA 93

FAMILY LAW – CHILDREN – interim orders – where the father seeks orders for unsupervised time with the child – where unsupervised time is opposed by the mother – where there is a family report – where there are allegations of violence – where the family consultant and independent children’s lawyer support the father spending unsupervised time with the child – where the Court considers a period of supervised time as appropriate – where it is ordered that the father spend time with the child supervised at a contact service.

Family Law Act 1975 (Cth) s 60CC, 65DAA

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Davenort

RESPONDENT: Ms Garrod

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4343 of 2012

DATE DELIVERED: 16 February 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 16 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Read

SOLICITOR FOR THE APPLICANT: Dixon Gallasch Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Gough

SOLICITOR FOR THE RESPONDENT: Adelaide Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

(1)PROVIDED THAT the Suburb G Contact Centre (“NCC”) can make the time available the father spend time with the child B (“the child”) born on … 2010 each alternate weekend for a period of two (2) hours at times to be nominated by the NCC for at least two [2] further sessions.

(2)Thereafter at the C Town Contact Centre (“CCC”) each alternate weekend for a period of two [2] hours at times to be nominated by the CCC for two [2] sessions.

(3)Thereafter each alternate Saturday with handovers to take place at the CCC:

(a)from 10.00 am to 2.00 pm for six [6] occasions;  and thereafter

(b)from 10.00 am to 4.00 pm

PROVIDED THAT at all times the times not spent at the NCC or CCC are taken by the father with the child primarily in the presence of one of the nominated supervisors, being Mr D; Mr E or Ms F.

(4)Without admission, both parties are restrained and an injunction is hereby granted restraining each of them from:

(a)discussing with or in the presence of the said child the proceedings or the allegations in this matter; and

(b)denigrating any party to these proceedings or allowing any other person to denigrate any other party to these proceedings to or in the presence of the child.

(5)On the requirement that the child’s school does not disclose to the father any information relating to the address of the mother or the child the father is permitted to liaise with the school concerning the child’s progress at the school.

(6)Being not opposed and at the request of the Independent Children’s Lawyer both parties are restrained and an injunction is granted restraining them from using any form of physical discipline to the child or from permitting any other person so to do.

(7)All outstanding interim applications are dismissed and removed from the active pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davenort & Garrod 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 ADELAIDE

FILE NUMBER: ADC 4343 of 2012

Ms Garrod

Applicant

And

Mr Davenort

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1.This is the interim hearing in relation to orders which are sought by the parties concerning the child of the parties, B, who was born in 2010, who is now aged five.

2.There have been proceedings in this Court on and off over a considerable period of time in relation to the child the child.  Currently the Court has before it a request by the father for unsupervised time with the child which is opposed by the mother.  The mother is opposing any time for the father to spend with the child other than that which is at a children’s contact centre and supervised by the contact centre.

3.The material which is on the file is now some 60 documents, the more recent material being filed in 2015.  The application for interim orders relates to material that primarily concerns the year 2015 the matter having been then transferred from the Federal Circuit Court. 

4.The orders made by Judge Cole on 17 September 2015 referred to the consent orders which provided that until further order the father shall spend supervised time with the child for two hours each alternate weekend on such dates and times as nominated by the centre as follows:

a)Pending acceptance at the C Town Contact Centre, such supervised time shall take place at the Suburb G Contact Centre;  and

b)Following acceptance at the C Town Contact Centre, such supervised time shall take place at the C Town Contact Centre.

5.The order was made for the mother to ensure that her enrolment is received by the C Town Contact Centre within seven days.  All interim applications were dismissed, and the proceedings were transferred to the Family Court of Australia with further procedural orders being made on that occasion.  The matter has then been re-listed before the Registrar and subsequently listed before me with the parties being represented yesterday and today by counsel, including counsel for the Independent Children’s Lawyer.

6.The material that is before the Court includes the family report prepared by the family consultant, Ms H, which is dated 20 October 2015 following upon the family consultant perusing the Court file and conducting interviews with the mother, her partner, with the father and having observations with the child the child with the mother and the father and having an interview with the child the child.  The detailed report is before me, but there were significant issues taken as to the weight I should give the recommendations and her opinions and findings in relation to the best interests of the child. 

7.In the affidavit material which is before the Court, there are significant allegations made by the mother about the history of violence in the relationship between the parties and the history of intervention orders which have been obtained by the mother, restraining the father’s contact with her and his behaviour towards her.  There are significant issues in relation to the allegations made by the mother as to the violence by the father.  He makes a limited concession in relation to one incident.  I take into account the convictions the father has had for breaches of the intervention orders.

8.The matter that needs to be considered is the difficulty the child faces because of the ongoing dispute existing between the parties and the parents’ inability to come to any appropriate arrangements without the assistance of the Court.  The mother continues to propose that the father have no time with the child other than that which is supervised at the contact centre. 

9.The father, relying in particular on the report from Ms H, is seeking unsupervised time or, if necessary, time supervised by one of his family members.  The affidavits have been filed in support by those proposed supervisors, but the mother resists them being supervisors on the basis that she claims they would not have the capacity to supervise the time the father spends with the child to the extent that would be required to protect the child.

10.The Courts needs to take into account, even on this interim hearing, the provisions of the Family Law Act and the requirements as indicated in the case of Goode & Goode (2006) FLC 93-286 which emphasises the need to consider all of the factors. The primary factors, of course, are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence.

11.The mother makes an allegation that the child has alleged that the father has hit her and makes allegations in relation to the father behaving inappropriately towards the dog.  The father denies those allegations.  Those matters will have to be resolved at the final hearing of the matter. 

12.It is clear, however, that the relationship between the child and the father is dealt with in some detail by the family consultant in the family report.  In particular, without referring to the whole of the family consultant’s report, those sections beginning at paragraph 49 which deal with the interview with the child and later the observations of the time the child spent with the child and the family consultant’s assessment of the child’s relationship with the father all indicate that the benefit to the child having time with the father was quite clearly a significant factor. 

13.What is also significant is that the mother opposes the orders for unsupervised time on the basis of the history of violence and the father’s attitude towards the violence and the breach of the intervention orders.  However, I have before me today the submissions of the counsel for the Independent Children’s Lawyer, which also supports the father spending unsupervised time with the child from 10.00 am to 2.00 pm each alternate weekend for a period of six occasions and then from 10.00 am to 4.00 pm on alternate weekends.

14.The difficulty the Court has with that is with the approach the mother has taken and the opposition of the mother.  I consider it would be appropriate for a period of time to continue at the C Town Contact Centre so that the child becomes accustomed to the C Town Contact Centre and enabling the mother to adjust to the orders I propose to make, which will be for the father to spend time with the child after a period of time supervised at the C Town Contact Centre, spending time then as suggested by the Independent Children’s Lawyer, from 10.00 am to 2.00 pm each alternate weekend on six occasions and thereafter from 10.00 am to 4.00 pm each alternate weekend provided that all of the time which is not supervised at the contact centre is in the presence of and primarily under the supervision of one of the proposed supervisors nominated by the father. 

15.That will give the mother some indication that the child will be protected.  It will also provide the father with the assistance of other persons to provide evidence which will permit the Court to assess in due course the specific issues which are required to be determined in the long run.  The other factors which relate to the matters which have to be determined under section 60CC, I do take into account but are not significant at this stage to be included in these ex tempore remarks. 

16.The obvious difficulty in this case is that the parents are unable to communicate at this stage, and therefore the provisions of section 65DAA which relate to shared parental responsibility, need not be taken into account because of the difficulties the parties have had in the past.  I therefore do not give consideration to the father spending equal time or significant time but consider that it is important that the ongoing relationship as described in Ms H’ report being of benefit to the child be continued. 

17.The difficulties in relation to the assessment of Ms H’ report and how much she has taken into account the poor history of the father’s compliance with intervention orders is a matter which will be determined in due course in the final assessment of the matter. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 16 February 2016.

Associate: 

Date:  23 February 2016