Delaney and Carberry

[2007] FamCA 550

FAMILY COURT OF AUSTRALIA

DELANEY & CARBERRY [2007] FamCA 550

FAMILY LAW - CHILDREN - Application seeking to amend orders to limit the contact that the father has with the children pending an investigation by the Australian Federal Police of child pornography allegations and a final hearing – Issue of whether there should be professional supervision or family supervision

Family Law Act 1975

Goode v Goode (2006) FLC ¶93-286

Patsalou v Patsalou (1995) FLC ¶92-580

APPLICANT: Ms Delaney

RESPONDENT: Mr Carberry

FILE NUMBER: CAF 586 of 2005

DATE DELIVERED: 28 March 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 28 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gill

SOLICITOR FOR THE APPLICANT: Crowley Clifford Simpson

SOLICITOR FOR THE RESPONDENT: Ms Heuer

Orders

1. In relation to the application filed by the mother on 21 March 2007 Orders 3, 4, 5, 6, 7, 8, 9, 10, 11, 13 and 14 of the Orders made on 19 June 2006 are discharged.

2. That the children a son, born on … April 2002, and daughter, born on … December 2003, will spend time with their father as follows: 

   (a)For three consecutive days in each month to occur on the last Friday of each month and to continue on the following Saturday and Sunday (subject to Order 2b between 9 am and 6 pm on each day).

   (b)When the time that the children spend with their father occurs in Perth, the time during which they will be with their father on Fridays will run from 8.30 am until 5.30 pm to enable the father to take the son to school (but will apply nevertheless if the son is not at school).

3. The wife may provide copies of these orders to her employer, an airline company, to try to obtain leave or to have her name being placed on a roster which would accommodate her obligations under these orders.

4. The mother will do her best to ensure that her work rosters enable the periods of time that the children spend with their father to occur as set out above.  However, if she is obliged to work during the period nominated by these Orders then if she gives notice before the end of the previous month, the relevant period shall commence on the second last Friday of the month.

5. The first period of such time will occur in Perth in April 2007. The second in Perth and the third in Melbourne and continue thereafter, until further order, in such a pattern.

6. In relation to each period of contact the father will pay for the following costs in relation to Perth but shall be entitled to reimbursement therefore from the … Account (number … ) at Westpac which contains some of the proceeds of the sale of jointly-held shares and then from the sale of jointly-held shares as may be agreed by the parties from time to time.  Such agreement will not be unreasonably withheld by another party.

7. The reimbursement to which the husband will be entitled to be reimbursed as aforesaid will be:

   (i)The cost of supervision in Perth.

   (ii)His travel to and from Perth at the rate he actually paid calculated by reference to the ordinary economy fares between Perth and Canberra.

   (iii)The costs associated with his accommodation in Perth and a hire car and child seat or restraints in Perth to a total of and not exceeding $800 for each three day period when the children spend time with their father.

   (iv)The mother will be entitled to obtain reimbursement in relation to Melbourne time being the cost of her fares and the children's fares from Perth to Melbourne at a rate applicable not exceeding the economy rate between Perth and Melbourne and her and the children's accommodation in Melbourne and a hire car and appropriate child restraints or seats in Melbourne not exceeding $800 for each three day period.

   (v)The father will be entitled to reimbursement for the costs of the children's supervision with him in Melbourne.

8. The supervision referred to in these orders will be conducted by a professional supervising organization or company.  (It is noted in this regard that in the past that has included M in Perth and X and Y in Melbourne.)

9. If this matter has not come for a final hearing on or before the expiration of six months from the date of these orders either parent may apply for a reconsideration of the reimbursement arrangement set out hereinbefore, based on a consideration of the diminution of the joint assets of the parties to the possible detriment of either or both of them in any final division of property.

10. The father's application for costs contained in his response filed in this Court on 27 March 2007 is refused. 

11. The mother's oral application for costs in relation to this application are reserved.

12. This finalises the interim matter before the Court.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as Delaney v Carberry.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 586 of 2005

MS DELANEY

Applicant

And

MR CARBERRY

Respondent

REASONS FOR JUDGMENT

1. The issue before the Court arises by the application of the mother of the two children, the subject of orders of this Court, namely, a son, born … April 2002, and a daughter, born on … December 2003.  The application seeks variations to orders that were made by consent on 19 June 2006 and stipulates that the mother seeks that Orders 3, 4, 5, 7, 8, 9, 10, 11, 13 and 14 be discharged and that in lieu thereof there should be an order which provides that the children would spend time with their father for two days in each second month commencing in April of this year from 9 am to 6 pm on each of those two consecutive days with that time occurring in Canberra or Perth on an alternating basis beginning in Perth in April this year and that the time that the children spend with their father should be supervised by a professional agency, the costs of which were to be borne by the husband.  There are further orders but essentially that is the essence of the dispute.

2. It should be said that in final submissions about this matter this morning Counsel for the mother conceded that if there were to be an order that the alternating time that the children spend with their father should be in Perth or in Melbourne rather than Canberra, that this would not be a matter that he could reasonably argue against even though he acknowledged he had no immediate instructions about that matter. 

3. In issue was the frequency and duration of the time the children would spend with their father and also the question of whether supervision ought to be undertaken by a professional agency or might properly be undertaken, as the existing orders provided, by members of the father's family.  And finally there was the question of who was to pay the costs of supervision, if there were to be supervision.  The father sought that that cost be borne from joint assets of the parties, namely, some shares that have previously been identified as a source of funding.

4. The father's basic response to the mother's application, and this response was filed yesterday, was that the application should be dismissed and that the mother should pay his costs of and incidental to the application.  At the beginning of the proceedings this morning I inquired whether the father had proposed to file any affidavit material, or to tender any evidence in opposition to the application sought by the mother and I was informed that he did not.  Subsequently I provided an opportunity for Ms Heuer, who represented the father, to obtain instructions from her client principally on the question of whether he sought an adjournment to enable him to put further material before the Court and she informed me that he did not want such an adjournment based on the fact that he felt a need to preserve his financial position pending a final hearing of the issues between the parties and other associated events.

5. Nevertheless, in evidence before me in addition to the affidavit of the mother, which was relied upon by Mr Gill, which was filed on 21 March 2007, were the reports of Ms S, who is a single expert in these proceedings, which were respectively J1, J2 and J3, and some additional material produced subpoena from contact organisations relating to their reports, or their purported reports of events and of the time that the children spent with their father under the supervision of those reporters.

6. In determining the orders I am to make in this matter even though they are of an interim or even, one might argue, of a continuing basis, I am obliged in accordance with their Honours’ determination in the matter of Goode v Goode (2006) FLC ¶93-286 to follow the pattern that is prescribed under the provisions of the Family Law Act 1975 (the ‘Act’) as it was amended on 1 July 2006. In doing so I have to take account of the objects and principles which are set out under the Act and which I do not propose otherwise to recite today.

7. I have to, in accordance with s 60CA, make a decision regarding the best interests of the children as my paramount consideration.

8. I am obliged in determining the best interests of the children to have regard to the matters set out under s 60CC which involves, among other things, my having a primary consideration that there will be a benefit to the children in having a meaningful relationship with both of their parents and the need to protect them from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence.  In doing so, however, I must always do so on the basis that it must be in the best interests of the children.

9. There are additional considerations which are set out in s 60CC(3) which I am to take into account as well to the extent that it is appropriate and necessary that I should do so.  The fact that I have failed in these short Reasons for Judgment on this interim matter to express the fact that I have given consideration to each of the matters set out is not to be taken as my failure to take those matters into account, but rather to assume that those matters have been taken into account in the ordinary course of events to the extent that I consider it to be necessary in the circumstances of this particular application.

10. I am conscious of the provisions of s 60CC(4) which requires me to consider the extent to which either parent has failed or fulfilled his or her responsibilities as a parent and I must consider, given that this is a parenting order, the provisions of s 61DA which provides for a presumption that it is in the best interests of a child for the child's parents to have equal shared parental responsibility for the child, subject to other matters.  The presumption does not apply if there are reasonable grounds to believe the parent of the child, or a person who lives with the parent, is engaged in abuse or family violence and, importantly, s 61DA(3) when the Court is making an interim order the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

11. And finally, under s 61DA(4), the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility of the child.  In this matter it is not suggested, except in the final applications of the parties, that I should make an order, or should on an interim basis continue any order, that imposed equal shared parental responsibility on these parents. 

12. In my opinion this is an interim matter and it would not be appropriate for the presumption to be applied, bearing in mind the present circumstances of the matter and in particular the fact that the children are living primarily with their mother in Perth while the father lives in Canberra.

13. I do not regard the presumption as having been rebutted necessarily by any of the matters set out in s 61DE(2), but simply take the view that in these circumstances the presumption is effectively rebutted and in those circumstances make no finding. 

14. That would, to some extent, relieve me from the obligation in these circumstances to consider whether the children should spend equal time, or substantial and significant time, with the parents in the present circumstances.  Given the geographical separation of the parties, the nature of the dispute between the parents and the state of these proceedings, even if the presumption had applied, it seems to me that it would not be appropriate to make an order for equal shared time with the children, or for that matter that the father should spend substantial and significant time with the children.

Matters in Dispute

1. All of that is by way of introduction to the propositions genuinely in dispute before this Court, namely, that the existing arrangements (which in effect provide that the children would spend approximately a week with their father varying between Canberra, Perth and Melbourne, on essentially, and normally, the last week of each month by reason of orders made by consent in June 2006, be the subject of supervision. The supervision at present is in accordance with Order 8 as follows: 

   The contact so referred to above will be supervised by the father's parents or some other member of the father's family or a friend mutually agreed upon by the father and the mother.  If such a person is unable to exercise supervision then the contact will occur with such other professional assistance as may be available.

2. The mother's current application seeks in the light of developments now in evidence before this Court that it would be inappropriate for the father's parents to continue to be the supervisors of any contact, as it is referred to in the Order, (or more appropriately the time the children would spend with their father) in the future.  She sets out the reasons for this in her affidavit and I have [discussed] them with Counsel today.  To the extent that it is necessary, that exchange is incorporated into my Judgment, I make reference with the comments I made to Mr Gill earlier today about the nature of the risks to which the children might be exposed if I were to accept the full force and effect of some of the evidence that is before the Court.

3. I emphasise that no evidence in relation to the final hearing has yet been the subject of appropriate testing before this Court.  In fact there are still many matters in issue and it would appear that not the least of these is the fact that the father has (in the past at least) accessed child pornography on the internet.  Other issues that remain undetermined are the nature and the frequency with which the father accessed other forms of pornography and the effect that that may have upon his ability adequately and properly to parent the children perhaps in accordance with the principles referred to in Patsalou v Patsalou (1995) FLC ¶92-580.

4. Moreover the technical evidence upon which to some extent the mother relies as having at least inferentially suggested that the father did access child pornography, notwithstanding his sworn evidence to the contrary, is at this point nor clear, nor resolved or tested.  However, it is reasonable to say that the report of Mr V was the subject of comment from Counsel for the father in proceedings recently and I refer specifically to page 12 of the transcript of 8 March 2007 in line 41 and following and the comments made by Mr Nash who represented the father on that day.

5. The state of the evidence is that the computer discs and associated hardware which were the subject of investigation by the two independent witnesses have been referred to the Australian Federal Police for further investigation.  This was a reference that was made by consent.  That investigation has not been completed and it would be reasonable to say that the consequences of that investigation would almost certainly bear upon the final determination of issues between the parties in relation to the children.  It is also reasonable to say that very recently, (namely on 8 March this year), I made orders which facilitated not only those matters but also the release of certain money to each of the parties as a consequence of an increased draw-down on a mortgage of the property known as H, in which the father currently lives.

6. The argument for the mother in these circumstances is perhaps expressed in this way.  The evidence that has now been presented to the Court, even if untested and even if at this point inconclusive, is such as to cause her to have even more serious concerns about the children.  Her concerns might be expressed on a number of different levels and I have, as I indicated previously, looked at some of those risks and concerns in my exchanges with Counsel.  In the end it comes down to a question of whether the father's family could reasonably and properly supervise contact in a way which would ensure the children's safety. 

Supervision

1. I am somewhat hampered in my consideration of this proposition by the fact that the earlier elements of the evidence relating to supervision had occurred at a time when all of the relevant experts had proceeded on the assumption that the father had not at that point engaged in any access to child pornography.  That is not to say that there is any determination at this point that he has.  Far from it, but it may and would affect, in my opinion, the way in which both the experts and ultimately his family may consider his conduct and may approach, in the latter case, their obligations about supervision both as to the nature and the quality of that supervision.

2. The father has chosen for practical, it seems, reasons not to provide information about those matters to me today and I am unable to say from the present situation whether his family, and in particular his parents, would in fact in the light of the new evidence be prepared to undertake a strict supervisory role with the children.  That is not to suggest for a moment that they would permit knowingly any harm to come to the children and in fact if I were asked to draw that inference I would not do so.  That, nevertheless, does not alter the proposition that in circumstances such as these, it is not my role simply to provide protection for the children that is barely enough, but I should make orders that provide for their proper protection even if this means significant inconvenience for the parties or possibly some diminution in the quality of the time the children would spend with one parent, in this case the father.

3. In my opinion, given the developments for the reasons that I have considered with Counsel, it is appropriate for there to be professional supervision for the children during the time that they spend with their father.  Having reached that conclusion, I might add that is on the basis of an interim order, not necessarily finally. 

4. Having reached that conclusion there then remains the question of the duration and frequency of the time that the children will spend with their father.  In this regard the mother now seeks a significant diminution of that time from approximately five to seven days a month to two days consecutively every second month.  This and partly dictated by what she sees as being, on her Counsel's submissions, an appropriate way of maintaining the meaningful relationship between the children.  This must be one of my primary considerations under s 60CC.  There is a curious argument on the basis of a report (which is significantly flawed and attached to the affidavit of the mother from M, which is a supervising organization in Perth), that longer periods of contact were proving difficult for the children and it was therefore argued inferentially at least that shorter periods would provide a more meaningful relationship. 

5. I do not accept that argument as a matter of logic.  I accept that there is a valid submission from Ms Heuer that we have no evidence about why the children were upset at the end of the period they spent with their father.  However, if I were to accept without equivocation all of the material set out in the M reports it would, I think, be reasonable to infer that it was the nature and quality and extension of the time the children spent with their father that brought about some of the difficulties.  However, that is not necessarily my concern at this time. 

1. My attention was drawn to reports from another supervising agency namely, X and Y, in Melbourne and other reports from M’s organization about other visits.  I accept that there is no evidence either that the period that was agreed between the parties in June of last year constitutes in the circumstances a meaningful relationship or would provide a basis for a meaningful relationship between the children and their father.  I accept further that there is no evidence upon which I could reasonably rely, that the mother's application and the order that she seeks and the submissions made in support of it would justify the view that, that in itself, would provide a basis for a meaningful relationship between the children and their father.

2. It seems to me that what constitutes, within the somewhat ambiguous wording of the Act, a “meaningful relationship”, must be relative. What might be a meaningful relationship between children and parents who are co‑operative, proximate and willing could well be different from that which is involved with parents who by reason of antipathy or geography or unwillingness could only see the children for much more limited times at much longer intervals. What might be reasonable in one context would not necessarily be reasonable in the other and what might be meaningful in one context, may be as meaningful as it could reasonably be, given the circumstances of the parties.

3. It suffices to say that in this matter there is no evidence in the matters that I have just explored which would enable me to conclude that either arrangement would necessarily bring about a meaningful relationship between the children and their father. 

4. Both parties directed me to the evidence of Ms S who conducted an updating report about the parties and the children in February of this year and it was put to me separately but curiously as in support of alternative views, that [8.2] of Ms S’s report provides some guidance that the existing arrangement is not necessary for the maintaining of a meaningful relationship between the children and their father, and second, on the part of the father, that if I were to move from that position I should not move to the other end of the spectrum advocated for by the mother.  That paragraph reads as follows, and I read it in full:

   Even if [the mother] were to move back to Canberra, I would not recommend a shared care arrangement for [the children].  Assuming the supervision of [the father’s] contact is deemed no longer necessary, I would recommend a contact regime along the lines of that proposed by [the mother], that is a long weekend each month, two in Perth and one in Canberra, plus up to a week of all school holidays alternating between Perth and Canberra.  As the children grow older their contact in the Christmas holidays could be extended to three weeks. 

5. There are a number of factors that I should draw attention to.  The first is this report has not been the subject of any cross-examination by either party and the conclusions and recommendations reached by the registered psychologist, Ms S, are not matters which necessarily bind this Court, bind the parties, or represent an appropriate conclusion to be drawn [even] from the evidence she had before her.  That is not to say that they are not the appropriate conclusions but to say that at this point, I could not be certain that the evidence at the end will support these as appropriate recommendations or that even if they were appropriate from Ms S’s observations, on the basis of all of the evidence they are orders or proposals that I should implement.  I must in the best interests of the children. 

6. The second point is that they are prefaced, (in so far as they are a recommendation at all), on the basis that the supervision is “deemed no longer necessary” (her words not mine).  The proposal, however, on that basis suggests that it would not be appropriate even if the parties were living in the same town that there should be an immediate sharing of the time that the children would spend with their father.  This of course is contrary to the application that is currently before this on behalf of the father. 

7. However, what is urged upon me by Ms Heuer and to some extent by Mr Gill, (as each of them retreats from what might be loosely termed the opposite ends of the continuum) is that the proposal set out by the mother at that point, in the knowledge that there was at least a possibility that there could be a finding that the father had accessed child pornography, was that one long weekend each month, two in Perth and one in Canberra, leaving aside for a moment the week of school holidays, would be an appropriate way to maintain a meaningful relationship between the children.  I propose that an order of that sort should be made which would deal on an interim basis with duration and frequency.

8. In this regard, however, as I indicated previously the arrangements should be the subject of professional supervision and that in turn should be the subject of some re-imbursement from the joint assets of the parties - namely, their shares and the account into which the proceeds of the sale of those shares have been paid.

9. This should happen at least for the next few months when I would expect that a final hearing between the parties could occur. 

10. It is difficult to ascertain precisely what the costs of each period the children spend with their father would be.  First, the existing arrangements, which were the subject of some evidence from the mother (which was not really contested by the father), was that the cost per visit was about $2,000.  I cannot say with accuracy that that would be so because it is agreed that supervision would cost something over $200 a day so there would be a minimum, one would think, (on a three day basis) of $600 involved in that alone. 

11. The cost of air fares may be a factor which is variable depending upon the time of the month in which the travel is undertaken.  Accommodation may also be difficult.  In any event, it would appear that there is about a year's worth of time in this regard left in the joint funds of the parties.  If those funds are to be applied in this way, it seems to me that there is a genuine risk that there might be some reduction in the overall assets of the parties below a level which would enable a legitimate satisfaction of the mother's claim for a division of property between the parties.  I am unable on the evidence before me to come to any satisfactory conclusion about the likelihood or the probability of such a risk occurring. 

12. I note that Ms Heuer said in her submissions to me that the parties should not be seen to be putting their property ahead of their children.  I have to say that this seems to me to be an inappropriate submission in these circumstances, given the extreme nature of the dispute between the parties and the extreme difficulties associated with transport to and from Perth and Canberra.  However, having made that comment, it seems to me that it is appropriate perhaps to incur the risk associated with the application of these funds, at least pending a final hearing. 

13. I will, however, reserve liberty to apply about that matter if there has been no final hearing on or before six months from this date.  By this I mean that if the arrangements are continuing at that point and there is no reasonable prospect of a final hearing occurring immediately, I will enable the issue of the reduction of the potential share by the mother of the property of the parties to be re-agitated before me.

14. Finally, I note that the father sought costs of today. There is no basis, in my opinion, upon which the primary provision set out under s 117 of the Act could be set aside so far as the father is concerned. It could not be said that the mother had failed in her application before the Court. Importantly, the issues involved were serious and significant and to some extent were brought about by matters beyond the mother's control - if I can put it in those terms.

15. Costs of contact will be borne in the following manner: the father pay the first contact costs.  The mother will pay the Melbourne contact costs.  The father will be entitled to be reimbursed in relation to the first contact costs and the mother in relation to the Melbourne costs.  There is a stipulated amount.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate: 

Date: