F and F - [2006] FMCAfam 616

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & F

[2006] FMCAfam 616

FAMILY LAW – Parenting – father’s time spent with child to be more limited or supervised – changeover conditions – appointment of Independent Children’s Lawyer.

Family Law Act 1975 (Cth), ss.60CC(2) and (3), 65DA(2), 68L
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Re K (1994) FLC 92-461

Applicant:

KAF

Respondent:

IPF

File Number:

SYM 5417 of 2006

Judgment of:

Lucev FM

Hearing date:

11 October 2006

Date of Last Submission:

11 October 2006

Delivered at:

Perth

Delivered on:

13 November 2006

REPRESENTATION

Applicant Mother appeared for herself

Respondent Father appeared for himself

ORDERS

All previous Orders be discharged.
The child JRF, born 6 July 2004, spend time with the father as follows:
(a)each Wednesday from 25 October 2006 from 4.00 pm until 7.00 pm;
(b)each Sunday from 28 October 2006 from 9.00 am until 5.00 pm,
and changeover shall occur at Interrelate Children’s Contact Service, 160 Bath Road Kirrawee (“Contact Centre”) unless the parties otherwise agree in writing to an alternative changeover venue, and provided that if the dates in (a) and (b) are not dates convenient to the Contact Centre for the commencement of changeover, those dates may be varied by up to 14 days by written notice from the Director of Contact Centre to the parties and the Independent Children’s Lawyer.
Each party must:
(a)contact the Contact Centre by 4.00 pm 16 October 2006 and arrange an appointment for assessment for suitability for supervised changeovers;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised changeovers;
(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.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide changeovers as set out in Order 2 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 3 days written notice to the other party and to the Court.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised changeovers the time the father is to spend with the child as set out in Order 2 is to be implemented by the father collecting the child from the Contact Centre at the start of the time spent with the child and returning the child to the same place at the end of time spent with the child.
In the event that the Contact Centre offers supervised changeovers only at times which are less regular than specified in Order 2 then the time the child spends with the father shall occur at the times which are offered by the Contact Centre.
The mother, KAF, deliver the child to and collect the child from the Contact Centre on the days specified in Order 2 at times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity unless otherwise agreed in writing by the Director of the Contact Centre.
The father must not attend the Contact Centre or its vicinity before the time spent with the child is to start and must promptly leave the Contact Centre or its vicinity at the time the time spent with the child is to end.
If during the currency of these orders the Contact Centre declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on 3 days written notice to the other party, the Independent Children’s Lawyer (where it is not that lawyer giving the notice) and the Court restore the matter to the list.
If during the currency of these orders the parties and the Independent Children’s Lawyer agree in writing to vary these orders the parties and the Independent Children’s Lawyer have leave to list the proceedings in chambers urgently for consent orders to be made.
The period of time spent with the child provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, the time spent with the child shall occur at times when the services can be provided by the Contact Centre.
The Director of the Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party or the Independent Children’s Lawyer may re-list the matter for mention on 3 days written notice to the other party, the Independent Children’s Lawyer (where it is not that lawyer giving the notice) and the Court.
Pursuant to s.68L of the Family Law Act 1975 that the child be separately represented and I request that the Legal Aid Commission of New South Wales provide that representation.
Each party make available to the Legal Aid Commission of New South Wales within 48 hours copies of all applications and affidavits filed by the party together with all existing orders and copies of any relevant reports.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

THE COURT NOTES THAT:

The father has provided a mobile telephone number on which the mother can contact the father at any time and the father will communicate with the mother by telephone on her mobile number.
The mother provide the Contact Centre with J’s comfort item(s) on each occasion that J spends time with the father.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

(P)SYM5417 of 2006

KAF

Applicant

And

IPF

Respondent

REASONS FOR JUDGMENT

(Revised from transcript and further amended)

I delivered judgment in summary form and made orders in this matter in Sydney on 12 October 2006. I did so because of the relative urgency of the application made for interim orders, and at that time, I advised the parties that more detailed reasons for judgment would be forthcoming. These are those reasons.

The substantive application

The substantive application in this matter is by the father, IPF (“the Father”) in which the Father seeks orders concerning the time to be spent with his son, JRF, born 6 July 2004 (“the Child”). The substantive application was filed on 20 May 2006 in the Registry of the Family Court of Australia.
The mother, KAF (“the Mother”) filed a response to the substantive application on 5 June 2006.
On 21 July 2006 the matter was transferred to the Federal Magistrates Court by the Family Court.

Interim applications and orders

The Father made an application for interim orders concerning the time he was to spend with the Child on 7 June 2006.
That application was heard by Federal Magistrate Sexton in this Court on 21 July 2006 (the day of the transfer from the Family Court), and interim orders were made in the following terms:
1.The child JRF, born 6 July 2004 spend time with the father each Saturday and Wednesday from 10.00 a.m until 11.00 a.m. commencing Saturday 22 July 2006 when the father will collect J from the mother’s residence and the maternal grandfather will hand J to the father in the absence of the mother.
2.The maternal grandfather be permitted to remain with J and the father on the first Saturday and Wednesday J spends with the father.
3.The father remain in the vicinity of the mother’s residence during the periods of time the father spends with J.
4.The mother provide the father with:
a)     J’s drinking cup;
b)     J’s comfort item(s);
c)      Food for J
on each occasion that J spends time with the father.
5.Within 21 days, the mother provide the father with a full list of all foods and beverages able to be consumed by J.
6.Within 21 days the mother provide the necessary authorities to enable the father to consult with J’s therapists and medical practitioners about J’s condition.
7.The father be permitted to take his older children with him at any time he is with J.
THE COURT FURTHER ORDERS THAT:
8.The mention date of 16 August 2006 be vacated.
9.The matter be adjourned to 7 September 2006 at 9.45 a.m. before me for further mention.
10.The Respondent mother file and serve her Response and an affidavit in support within 21 days.
11.Pursuant to section 11F of the Family Law Act 1975 the parties attend child dispute conferences with Ms Martin, Family Consultant in this Registry as recommended by Ms Martin between now and the adjourned date.
On 7 September 2006 Federal Magistrate Sexton made further interim orders. Those orders were as follows:
1.All previous parenting Orders be discharged.
2.The child JRF, born 6 July 2004 spend time with the father as follows:
(a)On Saturday 9 September 2006 from 4.00 p.m until 7.00 p.m;
(b)Each Wednesday from 4.00 p.m until 7.00 p.m
(c)Each subsequent Saturday from 9.00 a.m until 5.00 p.m and change over shall occur at McDonalds Sylvania unless the parties otherwise agree in writing to an alternative change over venue.
3.Within 48 hours the mother provide the father with a full list (in writing) of all foods and beverages suitable to be consumed by J.
4.IT IS NOTED that the father has provided a mobile telephone number on which the mother can contact the father at any time and the father will communicate with the mother by telephone on her mobile number.
5.The mother provide the father with J’s comfort item(s) on each occasion that J spends time with the father.
THE COURT FURTHER ORDERS THAT:
6.The matter be adjourned to 21 December 2006 at 10.00 a.m before me for further mention or possible interim hearing.
7.Pursuant to section 11F of the Family Law Act 1975 the parties attend child dispute conferences with Ms Sylvia Martin, Family Consultant in this Registry as recommended by Ms Martin between now and the adjourned date and IT IS NOTED that there may be more than one appointment.
8.IT IS NOTED that the question of overnight contact will be considered on the adjourned date.
Thus, in the ordinary course of events, this matter would have been further heard by Federal Magistrate Sexton on 21 December 2006.

The present application for interim orders

The Mother commenced the proceedings heard by me on 11 October 2006 by an application filed on 6 October 2006 (“the Present Interim Orders Application”).
The Mother sought interim orders:
a)cancelling the orders of Federal Magistrate Sexton made on 7 September 2006;
b)replacing the interim orders made by Federal Magistrate Sexton on 7 September 2006 with orders:
i)limiting the Father’s access to Saturday morning only from 9.00 am to 12 noon;
ii)providing for access to be supervised; and
iii)providing for the Child to be dropped off and picked up at the Riverwood Police Station.
There were also orders sought that the matter be heard ex parte on short notice.

The hearing on the Present Interim Orders Application

Contrary to the usual practice with respect to applications for interim orders I allowed the parties to give oral evidence in addition to affidavit evidence already filed, be cross-examined on their affidavits and oral evidence, and to re-examine themselves, both parties presently being unrepresented.
I adopted that somewhat unusual course because:
a)there were a significant number of factual issues in conflict on the affidavit evidence; and
b)an assessment of the issues, even on limited material, seemed to me to be appropriate and necessitate an oral hearing of the evidence.
The Father told me from the bar table that he had been served with the current application for interim orders and the two affidavits of the Mother (all signed, sworn and filed on 6 October 2006) on the evening of 10 October 2006, that is the evening before the hearing of the present application for interim orders. Notwithstanding the lateness of service the Father had filed a 10 page affidavit in response by the time the matter was called on 11 October 2006.

The Mother’s evidence

The Mother filed two affidavits both sworn and filed on 6 October 2006.
In her first affidavit (“Mother’s First Affidavit”) the Mother alleged:
a)she was physically assaulted by the Father at McDonalds Sylvania, at about 4.30 pm on Wednesday 4 October 2006 while attempting to discuss the Child’s current medical needs with the Father;[1]
b)that the Father attempted to remove the Child from the Mother’s car, and that this was done after shoving the Mother aside and by pulling on the Child’s arm while the Child was still strapped into a car seat;[2]
c)that immediately after the alleged assault by the Father the Mother attended the Sutherland Police Station to report the incident;[3]
d)that “based on” the Mother’s report “the Police saw fit to apply for an Apprehended Violence Order” (“AVO”) on the Mother’s behalf. A Police event number “E94841297” was cited by the Mother;[4]
e)that having witnessed the alleged assault, the Child “was extremely distressed and clingy”, “had difficulty sleeping that night” and that the Mother needed to “sit beside his cot holding his hand until he fell asleep”;[5]
f)that she attended on her doctor on Thursday 5 October 2006 as a result of “experiencing considerable discomfort” in her abdomen and hips after the alleged assault, and that because she was 16 weeks pregnant, she feared for the safety of her unborn baby;[6] and
g)that she was advised by her GP that she had pulled ligaments in her abdomen, hips and pelvis during the alleged assault due to the softening of tissues in preparation for childbirth.[7]
[1] Mother’s First Affidavit, para 1.
[2] Mother’s First Affidavit, para 2.
[3] Mother’s First Affidavit, para 3.
[4] Mother’s First Affidavit, para 3.
[5] Mother’s First Affidavit, para 4.
[6] Mother’s First Affidavit, para 5.
[7] Mother’s First Affidavit, para 6.
The Mother swore a further affidavit on 6 October 2006 (“Mother’s Second Affidavit”).
The Mother alleges having “made 3 reports to Department of Community Services on behalf of [the Child] … outlining neglect whilst in the custody of [the Father].”[8] The Mother’s Second Affidavit then sets out a series of allegations concerning the Father’s alleged treatment of the Child. They include the Child:
[8] Mother’s Second Affidavit, para 1.
a)not being fed meals or given adequate fluids;
b)being distressed, clingy, having night terrors and screaming out for the Mother;
c)not sleeping during the day;
d)speech deteriorating;
e)nappy not being changed;
f)refusing to go anywhere without his security toy;
g)being afraid of nappy changes;
h)not sleeping during his Saturday visit with the Father, and his sleep pattern being “very disturbed”; and
i)being held by the Father “in an inappropriate and callous manner” in the carpark at McDonald’s, Sylvania on Saturday 30 September 2006 (that is four days before the alleged assault).[9]
[9] Each of the above-mentioned items is set out in dot point form in Mother’s Second Affidavit, para 2.
The Mother also gave oral evidence, and was cross-examined and re-examined.
The Mother gave evidence concerning the Father’s Affidavit[10] as follows:
a)paragraph 3: That the Mother’s mother’s incapacity meant that she was unable to look after the Child, and that this caused difficulties with the Mother being able to attend mediation on 20 or 24 October 2006. Otherwise, she asserted that the events set out by the Father were untrue.
b)paragraph 4:     The Mother asserted that the contents of this paragraph were largely untrue, and reiterated her evidence that there was a police event number for her report of the alleged assault.
c)paragraph 5:     The Mother said that it was unfortunate that the Child was not able to see his half-brother on the latter’s 15^th birthday.
d)paragraph 6:     The Mother said that the Father had not seen the Child’s regular naturopath but an understudy, and that this had led to difficulties in relation to the Father’s understanding of what an appropriate diet for the Child was, because the understudy was not fully conversant with the Child’s case.
e)paragraph 10: The Mother asserts that the quantity of “comfort” items for the Child had been increasing because the Child had been increasingly upset following time spent with the Father.
f)paragraphs 11-14: The Mother gave certain evidence concerning an allegation by the Father concerning her mental health. As I indicated to the parties during the course of the hearing I do not propose, at this stage, to make any findings with respect to allegations concerning the Mother’s mental health. That is a matter which is more properly determined at a final hearing having regard to any medical evidence then led. It is sufficient to note that the allegation has been made, and in that regard, is a relevant consideration in determining whether an Independent Children’s Lawyer ought be appointed.[11] I would however add that, in any event, there is no additional and/or expert evidence which would allow me to make a proper determination on this question.
[10] As to which see para. 29 below.
[11] And considered below in that context: see paragraph 93(c) below.
The Mother also gave evidence that between the Father leaving the former matrimonial home on Christmas Eve of 2004, and until this application was made, that he spent no more than a day and a half with the Child.[12] The Mother further said that she had never limited the Father’s access to the Child at any point, but that it was only with the passage of the “new legislation”[13] that the Father began a “push for custody”.
[12] Or “my son” as she put it, with some force, at that point in her evidence.
[13] Presumably a reference to the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
The Mother further said that it was “difficult to believe” that the Father “has the knowledge of … [the Child] that I do.”
The Mother was briefly cross-examined[14].
[14] For no more than 12 minutes on my notes.
The cross-examination evidence was largely a reiteration of matters already given in evidence, save that when asked what it was that the Father was “alleged to have done” in relation to the alleged assault the Mother responded that:
a)she was “shoved out of the way” by the Father;
b)the Father was “standing over the top of her looking down his nose”; and
c)the incident was witnessed by the Mother’s mother.
The Mother was also asked why she had not been to the police in relation to the assault. She responded that she had, and that the police officer who was dealing with the matter had to “leave it” because of overtime restrictions, but that that police officer was taking further statements in the course of the ensuing week. The Mother specifically mentioned a Constable Nicholls.
When cross-examined about the AVO, the Mother agreed that there was no AVO in place, but understood that the police were “filing one on my behalf.” In relation to this latter point, it is worth while contrasting the statement in cross-examination with the assertion in the Mother’s First Affidavit that:
“Based on my report, the Police saw fit to apply for an Apprehended Violence Order on my behalf.”[15]
[15] Mother’s First Affidavit, para. 3.
In re-examination the Mother confirmed that there was no AVO in place. Further, in re-examination, the Mother said that she had chosen the Riverwood Police Station as the changeover point as she did not want her son being passed through “strangers” in a contact centre.

Overall, the Mother gave me the impression of being a concerned parent, and perhaps overly so. She was certainly aggressive in her approach to the Father in these proceedings. Based on the brief exposure I had to her in these proceedings she gave the impression that her level of concern for, and protection of, the Child (which might ordinarily be unobjectionable) might occasionally affect her judgment in the context of the present dispute with the Father.

The Father’s evidence

The Father filed an affidavit sworn on 11 October 2006 (“Father’s Affidavit”). In that affidavit he referred back to affidavits sworn on 23 June 2006, 7 July 2006 and 6 September 2006, and filed in this Court.
The Father’s Affidavit sets out evidence in relation to:
a)difficulties in relation to the attendance of the Mother at mediation conferences;[16]
b)the background to the alleged assault (which includes the events referred to in a) above). That evidence as it relates to the alleged assault and which is quite detailed, is in the following terms:
At approximately 4.30 pm I saw K’s car arrive and walked over. K said “you’re half the reason we’re late.” I said “why’s that?” K replied “because I’ve had to be on the phone to the Family Court. The mediation wasn’t cancelled, its just you being difficult.” K’s mother appeared from near Southgate Shopping Centre at about this time. K continued to berate me from her position beside the left rear door of the car, immediately beside where J was seated. I stood and listened while K, in a loud and angry voice, said “you lied. The mediation is not cancelled, its just you being difficult.” K then went on “he’s had diahorrea. If you changed his nappies you’d know that you have to use a tissue and Sorbelene. You can’t use wipes.” I nodded in response. I note that I regularly changed J’s nappy and that K provides wipes for this purpose. Several shoppers walking by turned to watch. At 4.35 pm I said “K, I just want to get my son and go.” K stepped toward me and said in a loud and angry voice, with her reddened face very close to mine “he’s my son.”[17] When K moved away I opened J’s door and repeated calmly “I just want to get J and go.” K moved between me and J’s door and said “no. You are going to hear what I have to say.” I said “its now thirty-five minutes late. If you don’t hand J over I’m going to call the police.” K screamed “that’s it.” She slammed J’s door shut, and I saw J jump in his car seat. She said “I’m going to the police.” K’s mother was saying “Kel, you can’t.” K said to her mother “get in the car now.” K then drove off so fast I thought her car was going to hit the car parked adjacent. J was trying to look around to see me as the car drove away.[18]
c)that the Father phoned the Sutherland Police Station at 12.24 pm on 6 October 2006 and was told that the Mother had made no complaint, nor was there any complaint by anyone against the Father, and that there were no charges, pending procedures or AVO’s, or any other matter in respect of which the police were pursuing the Father. The Father says that he obtained this information from “GSO Susan, … confirmed by Sgt Martin”.[19]
[16] Father’s Affidavit, para. 3.
[17] Compare para. 20 and footnote 12 above and para. 38 and footnote 24 below.
[18] Father’s Affidavit, para. 3.
[19] Father’s Affidavit, para. 4.
On 6 October 2006, two days after the alleged assault at changeover, the Father “lodged … concerns” over the Child’s “safety and wellbeing” with DOCS.[20]
[20] Father’s Affidavit, para. 14.
The Father asserts that the Child:
a)has eating and sleeping routines which have become established more firmly each week;
b)added to his vocabulary, with both specific words and names, and “an ever-growing repertoire of farmyard noises”;
c)has his nappy changed regularly by his Father;
d)runs to the bathroom at bath time; and
e)has a “nap” every Saturday, and that the Father lies down in the same room with him to encourage this.[21]
[21] Father’s Affidavit, para.15.
The Father also gave oral evidence as follows:
a)that the Mother had a long history of preventing the Father from spending time with the Child;
b)that the Child was able to adapt to change, and the Father referred to photos[22] of the first occasion on which the Child met and spent time with his older brother by one of the Father’s earlier relationships. A review of those photos shows the Child seemingly happy, and enjoying himself in the company of his Father and half-brother,[23]
[22] See the Father’s affidavit sworn on 6 September 2006, Annexure A, for copies of the photos.
[23] A cynic might observe that the Father is hardly likely to submit photos of the Child in an unhappy state: “He goes to a drawer, and brings out an old photograph. It shows a young couple with five children, a baby on the mother’s lap, the mother herself smiling and the whole scene stable, domestic, and – if such attributes can be inferred from posed photographs – happy.” V. Seth, From Heaven Lake. Travels Through Sinkiang and Tibet (London: Phoenix, 1993) p.144. The Father’s photos are relatively normal shots of everyday family activities on an outing, showing the Father, the Child and the two elder half-siblings, seemingly happy and enjoying themselves.
c)denied that he had ever raised his voice or his hand to anyone at changeover on 4 October 2006, and suggested that if it was so serious a complaint would have been made and he would have been charged;
d)would prefer that changeover be at a contact centre where it could be conducted by trained professionals used to dealing with such situations;
e)did not want changeover to be at the Riverwood Police Station which he said was in the heart of the drug and criminal culture of Sydney’s southwest, and where the Child might be exposed to hostility and undesirable circumstances;
f)that when the Child spent time with the Father he was also very excited to spend time with his half-brother and half-sister (the children of the Father’s previous relationship);
g)that the Mother never referred to the Father as “dad” within earshot of the Child (or, seemingly, at all);
h)cross-examined on the prevention of time spent with the Child he said that he understood if it was a medical emergency, but there were dozens of occasions of prevention of time spent, which were simply that, prevention of time spent with the Child;
i)cross-examined about alleged refusal to give medicine to the Child he said it was because the Mother refused to tell him what the medicine was;
j)denied trying to pull the Child out of the car by the arm at changeover on 4 October 2006;
k)denied carrying the Child when the Child was a “baby” (and therefore presumably some time ago) “like a sack of potatoes”;
l)gave evidence about the difficulties in having to travel to spend time with the Child, and in balancing that with his commitments at work and for the welfare of his other two, older, children;
m)cross-examined at some length concerning issues with respect to the Child’s eating and drinking habits, nappy changing, sleeping and the taking of photos the Father had what appeared to me to be plausible reasons why he had adopted the courses or actions that he had on each occasion. The net effect of all of this evidence (in the context of a relatively short hearing there was quite a deal of it) was that the Mother and Father obviously disagreed about the proper approaches to some of the issues (and in some respects that reflects different parenting styles), or simply disagreed about whether the events actually occurred, or how they occurred.
Overall, the Father gave me the impression of a thoughtful, but relaxed, parent, who appreciated the responsibilities that he bore as a Father, as well as the difficulties in fulfilling those responsibilities. He gave the impression of being a comparatively calm character (apart from some aggression directed towards the Mother) with a sensible, well-balanced view of the issues involved in the parenting of the Child.

Evidence – mediation

I advised the parties during the course of the hearing that I did not intend to have regard to what had occurred in mediation, whether that evidence was part of their affidavit evidence or given orally (because, despite my admonitions to the contrary, there were various attempts to tell me what had occurred in mediation occurred in oral evidence and submissions).
I have therefore generally disregarded any evidence related to what has occurred at mediation.

Evidence – credibility

It was obvious from the demeanor in the witness box of both parents that they both love and care deeply for the Child. It was equally obvious that both parents have very different parenting styles. It is very difficult to assess, in a relatively short hearing, where both parties were unrepresented, but both parties cross-examined (to the best of their abilities), the credibility of each of the parents.
There were however some indicators which did assist me. Both parents were at times, aggressive with the other. The Mother was however more aggressive overall. That extended to making threats in open Court to the Father whilst under cross-examination about which I had to admonish her and warn her to refrain.
It was also clear that the Mother took an uncompromising view that she, and only she, knew and would ever know, what was best for the Child or, as she put it, with some force, “my son.”[24]
[24] See paras. 20 and 28(b) and footnote 12 above. See also the reference to “my child”: Father’s affidavit sworn 6 September 2006, para. 18.
The Mother’s approach to the best interests of the Child might be best exemplified by an exchange during submissions concerning the appointment of an Independent Children’s Lawyer (“ICL”). The Mother took the view that she could not see how a “total stranger” could be independent or objective, and that it was “less than fair” that a person appointed to consider the best interests of the Child be a person who did “not understand the idiosyncrasies” of the Child. I asked the Mother whether that rationale would extend to any outside person having any involvement in issues concerning the best interests of the Child. The Mother confirmed that that was, in her view, the case. Curiously, and perhaps inconsistently, it was clear from the Mother’s evidence, and her cross-examination of the Father, that:
a)the Mother has been taking the Child to see a child psychologist; and
b)the Child’s dietary requirements, and perhaps general health also, are, to a large extent, in the hands of a naturopath.
Ultimately, those perhaps inconsistent positions can be reconciled by taking the view, which I do, that the true position is that the Mother only considers that it is persons whom she wishes to consult and seek advice from who (together with her) are persons acting in the best interest of the Child.

Issues

Numerous issues were raised by the parties, principally by way of allegation and counter-allegation, during this relatively short hearing.
Central issues did however emerge in the hearing and submissions. The central issues to be determined in relation to this matter are as follows:
a)should the Father’s time spent with the Child be supervised?
b)should the Father’s time spent with the Child be more limited?
c)where changeover should occur;
d)whether changeover should be subject to certain conditions, and in particular, whether changeover should be supervised; and
e)whether an Independent Children’s Lawyer (“ICL”) should be appointed.
The Mother contends that the Father’s time spent with the Child ought to be limited to Saturday mornings only from 9.00 am to 12.00 pm, and that that access ought to be supervised.[25]
[25] Application filed 6 October 2006, Interim Procedural Orders Sought, Part 1.
The Father, for present purposes, does not seek a change to the amount of time spent with the Child, nor with the supervision arrangements, save to provide that in his view the changeover ought to be supervised, and conducted at an independent contact centre.
It is to the best interests of the Child that I must have primary regard.[26] Whilst considering the relevant factors generally, I have had particular regard to the following factors in the context of this case:
a)the opportunity for the Child to build a meaningful relationship with both parents, absent animosity;
b)protection of the Child from harm to the extent that there might be a violent relationship between the parents, and in particular, the “risk” of that occurring;
c)the nature of the Child’s relationship with parents and other persons, including in this case, the Mother’s current partner, and the Child’s grandparents (being the parents of the Mother), and other siblings (notably the Father’s other two children);
d)the willingness and ability of each of the Child’s parents to facilitate and encourage a close and continuing relationship between the Child and the other parent. In this case, whilst both parents express a willingness to do that, they either lack the preparedness, or (as I think more likely) the ability to do so when thrust together at changeover or when communicating concerning the Child;
e)the effect on the Child, including the likely effect of separation from either parent, grandparents or the Mother’s partner;
f)the practical effectiveness of the arrangements; and
g)the potential for family violence.
[26] Subsection 60CC(2) and (3), Family Law Act 1975 (Cth) (“Family Law Act”).
My consideration of these factors is interwoven into my consideration of the facts and issues hereunder.

The alleged assault on the Mother

The alleged assault occurred at changeover on 4 October 2006 in the McDonald’s carpark at Sylvania.
The Mother asserts:
a)that she was physically assaulted;
b)that she was shoved aside;
c)that she reported the matter to the Police and obtained a police event number;
d)that the Police saw fit to apply for an Apprehended Violence Order;
e)that she attended upon her general practitioner and was informed that her injuries, namely pulled ligaments, were alleged due to the alleged assault.
The Mother, when cross-examined, indicated that she had been “shoved out of the way” during the alleged assault, and that the Father had “stood over the top of her looking down his nose”. The Mother also said that she reported the matter to Constable Nicholls at Sutherland Police Station.
The Father denies the assault. The Father however gives a relatively detailed account of the background and circumstances on 4 October 2006.
The Father was not cross-examined directly on the alleged assault. Quite early in the Mother’s cross-examination of the Father she began to cross-examine on the question of the changeover, and what had occurred at changeover, on 4 October 2006. I disallowed a question put to the Father about whether the doctor might have made up the injuries that the Mother says were suffered, and the Mother simply left the point saying “don’t worry about it”. The Mother then simply did not further deal with the entire issue of what occurred at changeover on 4 October 2006, in so far as it related to the alleged assault on her.
The Father also said that he made enquiries concerning whether or not the Mother (either in her married or maiden name) had made a complaint to the Sutherland Police Station. He enquired of “GSO Susan, and confirmed by Sgt Martin”[27] and was told that no complaint had been made.
[27] Father’s Affidavit, para 4.
The Father’s enquiries also indicated that there was no pending AVO against him, and that the Police intended to take no action in this regard.[28]
[28] Father’s Affidavit, para. 4.
No additional evidence was led which might have assisted me to determine whether the assault occurred. Notwithstanding that it was:
a)seven days since the alleged assault occurred;
b)six days since the Mother saw her general practitioner; and
c)five days since the Present Interim Orders Application and Mother’s affidavits had been filed,
there was no evidence:
d)from the Mother’s mother concerning the alleged assault (the mother having allegedly been present);
e)from any other person in the vicinity of the McDonald’s carpark at Sylvania on that Saturday afternoon;
f)no report or letter from the general practitioner confirming the injuries said to have been suffered, or any indication as to their cause;
g)no police report, or copies of any police documents; and
h)no AVO, and no evidence that there is a temporary or interim AVO, or that the Police have actually applied for an AVO.
I therefore make no finding that the assault occurred, but equally make no finding that the assault did not occur.
Additionally, even if the assault did occur, the “shoving aside”, whilst serious, would not be sufficient, at this stage, in my view to warrant restricting the Father’s time spent with the Child or require the Father’s time spent with the Child to be supervised.
If the alleged assault did occur, it is the first serious allegation of assault in this matter. What the alleged assault does highlight is a problem which presently needs to be resolved, that is, the changeover mechanism.
Difficulties presently occurring at changeover might, if allowed to go on:
a)affect the opportunity for the Child to build a meaningful relationship with one or other parent, if one or other parent seizes on the opportunity occurring at changeover to criticize the other parent;
b)result in a violent (even if episodic) relationship developing between the parents, thereby occasioning some risk to the Child;
c)will have an effect on the Child, a matter evident from the concession in these proceedings by both parents that the Child was presently being affected by what was occurring at changeover.

The alleged assault on the Child

The Mother’s evidence was that the Father attempted to remove the Child from the car after the Father had shoved the Mother aside, and that he pulled on the Child’s arm whilst the Child was still strapped in the car seat.
The Father denies the Mother’s allegations.
Taken at their highest the Mother’s allegations do not, in my view, indicate any abuse or violence by the Father toward the Child. There is nothing in the Mother’s evidence which indicates that the Child was treated roughly or violently by the Father. There is nothing to indicate that the Father intended to harm the Child. Furthermore, one can envisage that the Child’s arm might be “pulled” in order to straighten the Child before unbuckling from the car seat. Alternatively, if the thrust of the Mother’s allegations is that the Child might have been injured by being “pulled” whilst still buckled into the car seat, this may have been mere inadvertence by the Father. The actual pulling was not much explored in evidence or cross-examination, and some of the alternatives that I have suggested above, were not dealt with in the evidence. It suffices to say however that the Mother’s allegation, of itself, does not rise to a standard which gives any cause for concern over the Father’s conduct toward the Child.
The Mother cross-examined the Father concerning the Father’s statements that the Mother’s slamming of the rear car door caused the Child to “jump” and that as the Mother drove off, the Child “looked around” to see where the Father was. The thrust of this cross-examination was that the Father did not see the Child do either of these things, and could not do so, because of the design of the car seat, and the fact that he was behind and to the rear of the Mother’s car.

I do not think that much turns on this issue, despite the concentration placed upon it by the Mother during the cross-examination of the Father. Rather than simply accepting that the Child did “jump” and did “look around”, both of which would seem to me to be perfectly natural reactions in the circumstances, the Mother seemed keen to establish that the Child did not react in this way. Perhaps the Mother thought that if the Child’s reactions were seen to be negative then they might be an adverse reflection upon her.
In my view, the Father’s version of events is more credible. The circumstances as described by him appear to me to be more likely to be what occurred, than the Mother’s suggestion (to be inferred from her cross-examination) which seemed to entail the Father moving to a position behind the car.
In any event, the incident is not, of itself, major, but I note that it is part of a continuum of events (albeit different versions of events) described by the Mother and Father on that day.
In relation to my consideration of this event I repeat what I have said at para. 58 above, as applicable in relation to this part of the events of 4 October 2006.
I should add that in relation to the alleged assault on the Child I do not consider that there is any evidence which establishes that it is likely that the Father would be likely to assault the Child. I think it far more likely that the Child might be injured as a result of an incident between the Mother and Father rather than a direct assault by the Father, at changeover or otherwise.

Other allegations

There are numerous other allegations made by both Mother and Father concerning care of the Child whilst the Child is in the care of the other. These allegations are set out at paras. 17, 19, 30 and 32 above.
Despite both parties having made numerous allegations, and despite both parties having complained to the Department of Community Services, no DOCS reports were put into evidence, and no evidence from DOCS was otherwise called.
I have considered the issues. It is difficult to come to a concluded view in relation to some of them, particularly without the benefit of external and/or expert views, and because they seem to be largely tit-for-tat allegations by each of the parents.
Having considered the issues, I think it unnecessary to set them out at length, and I repeat what I said at para. 32(m) above. Suffice to say that, in my view, there is no sufficient evidence to indicate a need for the Father’s time spent with the Child to be supervised or reduced. Again, some of the evidence in this regard reveals a problem presently to be resolved – the animosity between the parents at changeover, and in that regard I repeat my comments at para. 58 above. In relation to these issues I note that the nature of the Child’s relationship with each parent seems appropriate during the time that the Child spends with each of the parents, having regard to their different parenting styles.

Changeover

Changeover presently occurs at McDonald’s Sylvania, at which there is a seemingly rather large carpark, in which the Child might easily be lost or possibly injured.
Again, the evidence highlights a problem. The animosity between the parents is such that they seemingly cannot co-ordinate, or have difficulty in co-ordinating, a carpark meeting. The Mother in her oral evidence adverted to the fact that the parents have to go looking for one another, thereby endangering the Child as they traipse around the carpark. The Father’s Affidavit deals with the issue in similar terms.[29]
[29] Father’s Affidavit, para. 10.
The evidence of animosity between the parents at changeover is manifest. Witness:
a)the complaint made by the Mother about the alleged assault at changeover at McDonald’s Sylvania on 4 October 2006;[30]
b)the Father’s version of the events, including alleged verbal abuse from the Mother, at the changeover on 4 October 2006 at McDonald’s Sylvania;[31]
c)the alleged verbal abuse by the Father toward the Mother at McDonald’s Sylvania on 30 September 2006;[32]
d)the alleged angry exchange by the Mother toward the Father at changeover at McDonald’s Sylvania on 9 September 2006;[33]
e)other exchanges between the Mother and Father at changeover on 23 and 27 September 2006.[34]
[30] Mother’s First Affidavit.
[31] Father’s Affidavit, para. 3.
[32] Mother’s Second Affidavit, para. 2(c).
[33] Father’s Affidavit, para. 7.
[34] Father’s Affidavit, paras. 8 and 9.
The above are only the most recent allegations of animosity, being matters which have arisen since the matter was previously before this Court on 7 September 2006. It does not include matters referred to in prior affidavits.
Both parents, to their credit, accept that any animosity between them impacts on the Child, particularly when it occurs in his presence.
The manifest animosity at changeover needs to be resolved, or the opportunity for its occurrence removed.
Given the history of these proceedings, and the evidence of the parents and the manner in which it was given, there is presently no realistic prospect of resolution of this issue by the parents.
The Mother’s proposal is for changeover to occur:
a)at the Riverwood Police Station;
b)alternatively, at her home.
The Father’s proposal is that changeover occur:
a)at the Interrelate Children’s Contact Service in Kirrawee;
b)alternatively, that it continue to occur at the carpark for McDonald’s, Sylvania.
In relation to a police station changeover, I have considerable difficulty in accepting that that is a proper environment for the changeover of a young child. I recognize that it frequently occurs, even by order of this Court. Notwithstanding that, it is my view that it is not appropriate because:
a)the Child is probably now or soon will be, developing lasting memory,[35] and ought not, in my view, associate the transition from one parent to another with a police station, with the possible negative associations inherent therein;[36] and
b)a police station is, in any event, a potentially hazardous and undesirable environment for all concerned (particularly the Child), especially, if as the Father’s evidence suggests, the area is one with a significant criminal and drug culture.
[35] William J Cromie “Long-term memory kicks in after age 1: Human brain not sufficiently developed” “Police stations can be extremely unpleasant places for victims, who may have to wait for hours, sometimes with young children, in offices and foyers”: McManus, Member for Bulli, Hansard, New South Wales Legislative Assembly, 18 November 1998, pp.10227-10228.
A changeover at home (that is the home of the Child and the Mother) is preferable to a changeover at a police station.
However, neither of the Mother’s proposals resolves the fundamental problem: animosity between the parents at changeover and the conflict that appears to inevitably arise from this. There is evidence that even when changeovers were occurring at the Child and Mother’s home that conflict occurred.[37] There is no reason to believe that it would not similarly occur in the future. Likewise, with changeover at a police station. There is no reason why the animosity which the parents have shown towards one another at changeover would reduce simply because the changeover was to occur at a police station.
[37] See for example Father’s affidavit sworn 6 September 2006, paras. 16 and 20, also the affidavit of Richard Adam Leakes sworn 15 August 2006, paras. 5 to 7.
The Father’s alternative proposal does not alter the existing situation, and is therefore unsatisfactory.
The Father’s primary proposal, that changeover occur at an independent centre, has the virtue that it offers an opportunity to avoid the animosity and conflict occurring at changeover. It also has the benefit that the proposed centre in Kirrawee is an intermediate meeting point for the parties. I consider an intermediate meeting point appropriate having regard to all the circumstances of this case, including:
a)the Mother’s pregnancy;
b)the support afforded to the Mother by her partner and parents;
c)the Father’s work responsibilities; and
d)the Father’s responsibility for two other children.
The Mother objected to the changeover occurring at an independent centre where she did not want her son being passed through “strangers” in a contact centre.[38] In my view the Mother’s objection is not valid:
“The use of children’s contact centres to provide a safe, child-focused venue for contact and contact changeover is a relatively new phenomenon in the family law system. Children’s Contact Centres are, and will continue to play, a very important role in facilitating contact between children and their parents, and others significant in their lives.”[39]
and
“Children’s Contact Services provide safe, neutral and child-focused venues for facilitated “supervised” contact visits and changeovers to occur between children and their parents experiencing conflict in managing their contact arrangements. Children’s Contact Services aim to minimize children’s exposure to conflictual or unsafe situations. Children’s Contact Services work with families to encourage positive interaction between children and their parents, and to support the strengthening of these relationships. Over time, and where possible, parents are encouraged to move to self-management of their contact arrangements.”[40]
[38] See para. 26 above.
[39] Boland J and C. Pitcher “Supervised contact: solution or soft option? When all else fails – what about a contact centre?” Papers of the 11^th National Family Law Conference, Gold Coast, September 2004 p.519 at 521: (“Boland & Pitcher”).
[40] Boland & Pitcher at 534 (Appendix A).
Those aims appear to be consistent with the type of factors that I am obliged to have regard to in determining what is in the best interests of the Child.
The precise mechanism for changeover, and in particular the extent to which the Child might be left in the care of one of the centre’s professional staff between being dropped off and picked up by Mother and Father respectively, and vice-versa, is a matter which would be part of the process to be resolved in accordance with any relevant rules of the relevant centre.
In my view, supervised changeover at an independent centre is in the best interests of the Child.

The appointment of an Independent Children’s Lawyer

The approaches of the Father and Mother to the appointment of an Independent Children’s Lawyer (“ICL”) were in stark contrast.
The Father welcomed the appointment of an ICL.
The Mother, initially said she welcomed it, but then opposed it, and in particular opposed it on the basis that no person (including no person expert in children’s’ matters) would know better than her what was best for her Child.
In considering this issue I have had regard to the following factors:
a)any apparently intractable conflict between the parties;
b)allegations of family violence, and any allegations and an assessment of risk in that regard is part of the role of the ICL in protecting the Child’s interests, as well as obtaining relevant reports from DOCS;
c)allegations of drug dependence and abuse and mental illness. Whilst I make no finding in relation to those matters (as I indicated I would not during the course of the hearing) it is nevertheless the case that the allegations made by each of the parties are a relevant consideration as to whether an ICL ought to be appointed;
d)separation from siblings (although this appears to be a different type of case to that considered by the legislation which appears to relate to siblings brought up together being separated); and
e)that neither party is presently legally represented and it is therefore necessary for the Child’s interests to be protected by the appointment of an ICL.[41]
[41] Re K (1994) FLC 92-461.
In all the circumstances, I have determined to recommend the appointment of an ICL.

Conclusions

I have reached the following conclusions in relation to the issues in this matter:
a)that the time spent by the Father with the Child should not be supervised;
b)that the time spent by the Father with the Child should not be more limited than it presently is;
c)that changeover should occur at the independent contact centre nominated by the Father;
d)that the changeover should be subject to the conditions set out in my orders as follows, and should be subject to such conditions as the independent contact centre otherwise imposes; and
e)that I will recommend the appointment of an ICL.

Order

The following orders are made:
1) All previous Orders be discharged.
2)The child JRF, born 6 July 2004, spend time with the father as follows:
a)each Wednesday from 25 October 2006 from 4.00 pm until 7.00 pm;
b)each Sunday from 28 October 2006 from 9.00 am until 5.00 pm,
and changeover shall occur at Interrelate Children’s Contact Service, 160 Bath Road Kirrawee (“Contact Centre”) unless the parties otherwise agree in writing to an alternative changeover venue, and provided that if the dates in (a) and (b) are not dates convenient to the Contact Centre for the commencement of changeover, those dates may be varied by up to 14 days by written notice from the Director of Contact Centre to the parties and the Independent Children’s Lawyer.
Each party must:
a)contact the Contact Centre by 4.00 pm 16 October 2006 and arrange an appointment for assessment for suitability for supervised changeovers;
b)attend the assessment;
c)comply with any appointments made by the Contact Centre for supervised changeovers;
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.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide changeovers as set out in Order 2 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 3 days written notice to the other party and to the Court.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised changeovers the time the father is to spend with the child as set out in Order 2 is to be implemented by the father collecting the child from the Contact Centre at the start of the time spent with the child and returning the child to the same place at the end of time spent with the child.
In the event that the Contact Centre offers supervised changeovers only at times which are less regular than specified in Order 2 then the time the child spends with the father shall occur at the times which are offered by the Contact Centre.
The mother, KAF, deliver the child to and collect the child from the Contact Centre on the days specified in Order 2 at times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity unless otherwise agreed in writing by the Director of the Contact Centre.
The father must not attend the Contact Centre or its vicinity before the time spent with the child is to start and must promptly leave the Contact Centre or its vicinity at the time the time spent with the child is to end.
If during the currency of these orders the Contact Centre declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on 3 days written notice to the other party, the Independent Children’s Lawyer (where it is not that lawyer giving the notice) and the Court restore the matter to the list.
If during the currency of these orders the parties and the Independent Children’s Lawyer agree in writing to vary these orders the parties and the Independent Children’s Lawyer have leave to list the proceedings in chambers urgently for consent orders to be made.
The period of time spent with the child provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, the time spent with the child shall occur at times when the services can be provided by the Contact Centre.
The Director of the Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party or the Independent Children’s Lawyer may re-list the matter for mention on 3 days written notice to the other party, the Independent Children’s Lawyer (where it is not that lawyer giving the notice) and the Court.
Pursuant to s.68L of the Family Law Act 1975 that the child be separately represented and I request that the Legal Aid Commission of New South Wales provide that representation.
Each party make available to the Legal Aid Commission of New South Wales within 48 hours copies of all applications and affidavits filed by the party together with all existing orders and copies of any relevant reports.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

THE COURT NOTES THAT:

The father has provided a mobile telephone number on which the mother can contact the father at any time and the father will communicate with the mother by telephone on her mobile number.
The mother provide the Contact Centre with J’s comfort item(s) on each occasion that J spends time with the father.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:

Date: 13 November 2006