Fay and Turner and Anor
[2008] FMCAfam 1508
•24 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAY & TURNER & ANOR | [2008] FMCAfam 1508 |
| FAMILY LAW – Parenting orders – jurisdiction of the Court to make the orders sought – child under the protective supervision of the Department of Child Safety – interim orders made. |
| Family Law Act 1975, ss.4, 4A, 60B, 60CA, 60CC, 60CC(3), 60CC(3)(a)(b)(d)(e), 60CG, 61DA, 61DA(1), 64B, 65D, 65DAA, 65DAB |
| Applicant: | MR FAY |
| First Respondent: | MS TURNER |
| Second Respondent: | DEPARTMENT OF CHILD SAFETY |
| File Number: | BRC 8657 of 2008 |
| Judgment of: | Slack FM |
| Hearing date: | 23 October 2008 |
| Date of Last Submission: | 23 October 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 24 October 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Wonderley & Hall |
| Solicitors for the First Respondent: | MacDonald Law |
| Counsel for the Second Respondent: | Mr Selfridge |
| Solicitors for the Second Respondent: | Crown Law |
ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER:
That all previous Orders and parenting plans be discharged.
That the Mother and Father shall:
(a)keep the other parent informed at all times of their residential address and landline contact telephone number;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child, and this order will authorise any treating medical practitioner to release the child's medical information to the other parent.
That the parents authorise by this order, the school or day-care centres attended by the child to give each parent information about the child's educational progress and other related activities, and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent's cost).
That during the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
That the child is to live with, spend time with and/or communicate with the Mother and Father as agreed between the parents and if they fail to agree, then as follows.
That the child shall spend time with the Father:
(a)for the next six (6) weeks, each Monday and Friday from 10.00am until 1.00pm, with changeover for contact to occur at the [T] Contact Centre;
(b)for the next six (6) weeks thereafter, each Monday and Friday from 9.00am until 3.00pm with the changeover for contact to occur at the [T] Contact Centre;
(c)thereafter until further order, from 3.00pm Sunday until 3.00pm Monday in each week.
That otherwise, the child shall live with the Mother.
That except as otherwise ordered, the Father and Mother shall collect the child from and return the child to the [T] Contact Centre and the Father shall be responsible for the costs of the use of the centre.
That the Father and Mother shall forthwith take such steps including the signing of any documents for intake at the centre and comply with all of the requirements of the centre.
That pursuant to Rule 15.09 of the Federal Magistrates Court Rules 2001 Mr Ian Campbell is appointed a Court Expert in this matter.
That in addition to any matters that the Court Expert considers important to the welfare of the child and the factors contained in s.60CC of the Family Law Act the following matters should be covered:
(a)what, if any, interventions might assist the parties to achieve a cooperative parenting outcome including but not limited the possible benefit to the parties from attending a Parenting Orders Programme;
(b)what, if any, interventions would assist the parties to resolve potential disputes about the parenting orders or the changing needs of the child in the future.
That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Court Expert should also canvass and report the views and likely consequences of and for the child if the Court did not reach a conclusion which accorded with the child’s views.
That if either party requires the report writer for cross-examination at the final hearing, they should notify the Court Expert in writing no later than 28 days prior to the hearing in the matter.
That the parties and the child of the relationship (if requested) attend upon the Court Expert on a date and time to be advised by the Court Expert for the purposes of the preparation of a Family Report to be made available to the Court.
That the Federal Magistrates Court of Australia be responsible for payment of the cost of preparation of the Family Report.
That the Court Expert has liberty to list the matter for further directions and for the purpose of that mention, the Court Expert and the parties have leave to appear on the telephone. For the purpose of mentioning the matter the Court Expert has leave to contact the Associate to the presiding Federal Magistrate.
That the interviews not to take place until sometime in the early 2009.
That pursuant to s.91B of the Act, it is requested that the Chief Executive Officer of the Department of Child Safety intervene in these proceedings.
That for the purposes of determining whether to intervene the Chief Executive Officer of the Department of Child Safety or his/her nominee, pursuant to rule 2.08 of the Federal Magistrates Court Rules has liberty to inspect the documents filed by the parties in the proceedings and contained on the Court file.
That this matter be adjourned to 9.30am on a date to be advised in 2009 in the Federal Magistrates Court of Australia at Toowoomba.
IT IS NOTED that publication of this judgment under the pseudonym Fay & Turner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 8657 of 2008
| MR FAY |
Applicant
And
| MS TURNER |
First Respondent
| DEPARTMENT OF CHILD SAFETY |
Second Respondent
REASONS FOR JUDGMENT
This is an application by the father for parenting orders in relation to the child [X] born [in] 2006. In his application the father seeks final orders, the effect of which is that the child should reside with him. However, his interim orders simply seek an arrangement whereby the child spends time with him and that time is incrementally increased, pending the final hearing in relation to the matter.
The mother in her response seeks parenting orders, the effect of which are that the child should live with her and that the father should have time with the child, supervised at the [T] Contact Centre.
Background
These parties did not have a significant relationship. They commenced their relationship in or about January 2006 and concluded their relationship in or about mid April 2006. The parties did not live together for any significant periods of time.
[X] was born [in] 2006, and after the birth of [X], the father does not seem to have had much contact with the child. There is a factual dispute between the parties as to the reasons for that, but on the evidence, apart from a few occasions, he did not have regular time with her.
In or about June 2008, the father was contacted by the Department of Child Safety and was advised that an investigation was underway in relation to the child. An affidavit from an officer from the Department of Child Safety sets out some of the concerns that were raised by notifiers and the Departmental officers at that time as to the mother's capacity to provide a safe, secure and stable environment for the child. As a result of those investigations, some proceedings were commenced in the Children's Court in Toowoomba. Soon after, the father was contacted by the Department of Child Safety. He commenced spending one hour each week with the child and that continued for a period of two months. On or about 5 September 2008, orders were made in the Children's Court at Toowoomba, the effect of which were that the child was placed under the protective supervision of the Department of Child Safety. The effect of those orders is of some consequence in these proceedings, but the practical effect of the orders was that the child continued residing with the mother.
The evidence is unclear about what has occurred with respect to the child's relationship with her father since that time. It does not appear that the father has had significant contact. The parties seem to be in dispute about the terms of that contact, and there is also a dispute about whether the contact should occur at the [T] Contact Centre.
The father [works in the agricultural industry]. He lives on a property nearby to Toowoomba. He married this year and lives with his wife. As I understand it, his parents live close by. He has children from a former marriage with whom he has regular contact.
The mother currently resides in Toowoomba. She has two other children. It is not absolutely clear to me the circumstances in relation to those children. It does seem that they are currently living with their father, although, as I say, that is not clear on the material. The child [X] appears to be in good health, despite concerns raised in relation to this child that warranted the intervention of the Department of Child Safety. At least on the evidence that I have, she appears to be meeting her developmental milestones.
This is an interim determination of the application. Nevertheless, the welfare and best interests of the child remains the paramount consideration. There has been no testing of the evidence and the scope of the inquiry is limited to the arrangements that should be in place for the child pending some final or further determination of the matter. I am not able to make findings of fact on matters relating to the merits where those facts or issues are contested. In determining what is in the best interests of the child, I must consider the matters set out in s.60CC and I do not intend to itemise and give consideration to every heading with respect to s.60CC of the Act, suffice to say, that I have taken into account those factors including particularly the primary considerations, namely the need for the child to have a meaningful relationship with both parents, and also the need to ensure as best can be done, the child is protected from harm.
There is a further jurisdictional issue with respect to this matter, and that is a question as to whether this Court has the power to make the orders that are sought by the father in the proceedings. In relation to that particular issue, I have been assisted by the written submissions of the parties, and in particular the written submissions of the Director-General of the Department of Child Safety.
The particular issue relates to the interpretation of s.69ZK of the Family Law Act, which provides as follows:
A Court having jurisdiction under this Act must not make an order under this Act (other than an order under div.7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a)the order is expressed to come into effect when the child ceases to be under that care; or
(b)the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
As I indicated, the child is the subject of a “protective supervision order”. The question is whether that means that the child is “under the care of a person” pursuant to the provisions of s.69ZK. At this time, there is no consent by a Child Welfare Officer to the making of an order.
As I understand it, the reason for that is because it is the submission of the Department of Child Safety that such consent is not necessary in these proceedings as the Department of Child Safety does not consider that the provisions of s.69ZK ought apply in relation to a child who is the subject of a protective supervision order.
I have read and taken into account the submissions brought by the Director-General of the Department of Child Safety. I do not intend to enter into any significant discussion about this particular issue. I am satisfied that this Court has jurisdiction to make orders, and that those orders can come into effect from the time that they are made. To the extent that I need to, I adopt the submissions of the Director-General of the Department of Child Safety and I accept that this is a child who is not "under the care" of a person under a child welfare law. As a consequence, I consider that I am seized of the matter and able to make orders in relation to the child.
There is no dispute, at the present time, that the child should continue to live with the mother and I intend to make an order that formalises that position, on an interim basis. The current dispute between the parties is the development of the relationship between the child and father. The mother argues that the child's time with the father needs to be supervised by the [T] Contact Centre. She expresses a number of concerns in relation to the child. Those concerns relate, in part, to the safety of the child but also to the nature of the relationship between the child and father. In essence, as I understand the mother's case, it is that the child has had a limited relationship with the father and that the development of that relationship needs to progress cautiously and in the interests of the child and that she says the [T] Contact Centre is the best environment to promote the continuation of that relationship.
The mother also raises concerns about inappropriate behaviour that she witnessed by the father during the course of their short relationship. In particular, some concerns about him showering with his six year old daughter and concerns about safety issues with respect to the father's property. Apparently it is a working dairy farm and the mother raises a number of concerns about the child needing proper and full supervision on the farming property.
I should say immediately that the Department of Child Safety has been involved in the care and welfare of the child now for a reasonably significant period of time. They have assessed both parents and it is the assessment of the Department of Child Safety that they do not consider that the child is at an unacceptable risk from having unsupervised contact with the father. I should also indicate that the Department, subject to some supervisory arrangements, have been content to place the child in the care of the mother at the present time.
Ultimately, in this matter, I am satisfied that I ought to make parenting orders, the effect of which will be that the child should spend unsupervised time with her father. It is, in my consideration, important to the overall development of the child that she be able to develop a meaningful relationship with her father. To date, she has not been able to develop that relationship. I am not satisfied, on the evidence, that there is an unacceptable risk of harm to the child from having unsupervised contact with the father. I have taken into account the issues raised by the mother, but I am entitled to give weight to the considerations of the Department of Child Safety who have had a reasonably significant involvement with the child and have made some assessment of the father's capacity to provide a safe, secure and stable environment for the child. There is nothing on the evidence presented by the mother that suggests to me that the father is incapable of or will be unable to provide a safe, secure and stable environment for the child.
The most significant issue for me, in relation to the development of the relationship between the child and the father, is the fact that the child has had a limited relationship with her father and that relationship has been disjointed and fractured. There was a period when she was having regular contact with her father and on the evidence, the father himself acknowledged that it took time for the child to become used to him. He says that at the end of the period, the child was acknowledging him as "Daddy" but the reality is that, on the face of the evidence, this child probably sees her father as a stranger. I need to be conscious of the fact that the development of her relationship with her father, although important, should not cause any significant disruption to her secure primary emotional attachment. Given the history of this matter though, at this point in time, it is unclear to me, the extent to which her relationship with her mother is a secure attachment, but nevertheless, the facts are that her predominant carer throughout her life to date has been her mother.
I intend to put into place daytime arrangements, at least initially, for the child to spend time with the father. I initially intend that that time should be on two occasions in each week. I then intend to move to short overnight visits.
In terms of the management of this matter, what I intend to do is make orders for the preparation of a family report. I intend to make directions that the family report should be commissioned for the New Year so that when a report is prepared there will be some way down the track in terms of the nature and development of the child's relationship with her father. I intend to relist the matter in the New Year in the Toowoomba sittings of the Court to then consider the next stage in the proceedings including the listing of the matter for a final hearing, if that is considered to be an appropriate course.
I do not intend at this point in time to appoint an Independent Children’s Lawyer in the proceedings. The Department have had an active involvement with the child and although I am not clear whether they intend to formally join these proceedings, the indications are that the Department will certainly cooperate with the process and they are certainly intending to continue in their role to assist the parties in the development of the longer term needs of the child. To that extent, I do not consider that I need the additional assistance of an Independent Children’s Lawyer in the proceedings.
For those reasons, I will make the orders outlined at the commencement of this judgment.
I should say in relation to those orders, that I have made orders appointing the [T] Contact Centre as the changeover point. The nature of the relationship between the parents is such that I consider that there is an unacceptable risk of the child being exposed to conflict between the parents if they were to undertake the changeover themselves. I consider that the Contact Centre is best placed to manage the changeover and also to have some ability to monitor the attitude and behaviour of not only the child, but also the parents with respect to the changeovers.
I have made orders for short periods of time, at least initially, simply because of the age of the child, the lack of any relationship between child and father and the need in accordance with, as I understand the social science literature, to not compromise her current secure attachment to her mother and to promote a secure attachment to her father, and that is the reason that at least initially the contact should occur on at least two occasions in each week. For those reasons, I have made the orders that I indicated.
I will make an order for the preparation of a family report in relation to the matter with the direction that the interviews should not take place until some time in the New Year, and I will make arrangements to list the matter for further hearing in the Toowoomba circuit of the Federal Magistrates Court in either February or March 2009.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Slack FM
Associate: Karen Smith
Date: 24 October 2008
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