FERGUSON & PECK

[2013] FCCA 1116

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERGUSON & PECK [2013] FCCA 1116

Catchwords:
FAMILY LAW – Whether professional supervision needed for children’s time with the father.

Legislation:  
Family Law Act 1975 (Cth) ss.60CA, 60CC, 61DA, 62B, 62G(2), 65DAA, 65DA(2), 68L(2)

Federal Circuit Court Regulations 2001 (Cth)

Applicant: MR FERGUSON

Respondent: MS PECK

File Number: DGC 4082 of 2008

Judgment of: Judge Phipps

Hearing date: 4 June 2013

Date of Last Submission: 4 June 2013

Delivered at: Morwell

Delivered on: 4 June 2013

REPRESENTATION

Solicitor for the Applicant: Ms Taylor

Solicitors for the Applicant: Julie Taylor

Counsel for the Respondent: Mr Holmes

Solicitors for the Respondent: Robert Halliday & Associates

ORDERS

1. That the matter be fixed for Final Hearing week commencing 23 September 2013 in the Gippsland sittings of the Federal Circuit Court of Australia at Morwell with an estimate of 1 day.

2. The parties file and serve any further affidavits on which they seek to rely no later than 14 days prior to the next Hearing.

3. That pursuant to s.62G(2) of the Family Law Act1975 (Cth) the parties and child/ren X born (omitted) 2005 and Y born (omitted) 2006 attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services of the Federal Circuit Court of Australia for the purposes of the preparation of a Family Report to be made available to the court and the parties. ‌

4. That the parties to comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the said Family Consultant. Such report to be released prior to the next hearing.

5. The Family Report to deal with the following matters:

   (a)any views expressed by the said child/ren and any factors (such as the said child/ren’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child/ren.

6. That the Family Consultant has leave to inspect the court file and all documents produced on subpoena once permission to inspect has been granted to at least one party or the Independent Children’s Lawyer (if applicable) in this matter.

7. Pursuant to s.68L(2) of the Family Law Act1975 (Cth) the child/ren X born (omitted) 2005 and Y born (omitted) 2006 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

8. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the child/ren’s representative file a Notice of Address for Service.

9. Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

10. That all previous orders are discharged.

11. That the children X born (omitted) 2005 and Y born (omitted) 2006 live with the mother.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the children spend time with the father from 9.00am to 12 noon each Sunday commencing 9 June 2013 for 4 weeks and thereafter each Sunday from 9.00am to 4.00pm.

2. That the time the children spend with the father be supervised by the paternal grandmother MS J.

3. That each party is restrained by injunction:

   (a)from discussing the family law proceedings with the children or in the presence of the children or permitting any other person to do so;

   (b)denigrating or abusing the other party in the presence of hearing of the children or permitting any other person to do so.

4. That handover to take place between the mother and paternal grandmother at McDonalds Restaurant (omitted). The father is not to attend at or be in the vicinity of handover.

5. That the father undertake a supervised urine drug screen within 24 hours of any request by the Independent Children’s Lawyer and provide the results to the Independent Children’s Lawyer and the solicitor for the mother.

6. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Circuit Court Regulations 2001 (Cth).

7. That pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) 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 Annexure A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Ferguson & Peck is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MORWELL

DGC 4082 of 2008

MR FERGUSON

Applicant

And

MS PECK

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The parties are Mr Ferguson and Ms Peck.  They are the parents of X born (omitted) 2005 and Y born (omitted) 2006.  The issue between the parties is the amount of time the children should spend with their father and whether it should be supervised, and if so by whom.  The father’s proposal is that the children live with their mother and that they spend time and communicate with him on an interim basis for four weeks from 9.00am till 5.00pm each Saturday, thereafter each alternate weekend from 9.00am Saturday until 5.00pm Sunday commencing on 13 July 2013 and via telephone each Wednesday between 6.00pm and 6.30pm. 

2. He proposes that if a supervisor is needed his mother, the paternal grandmother, be the supervisor or his partner, Ms K.  The mother’s proposal is that the children spend time with the father for 2 hours on a Saturday from 9.00am to 11.00am each alternate Saturday or perhaps Sunday to be supervised by a professional supervisor and proposes a supervisor from the home-access network (omitted) or Ms H a well-known professional supervisor. 

3. The background is that the parties met and then commenced living together in 2000.  There was a period of separation in 2000 for a short time, and then a separation on 21 October 2008 which continued until 2010.  On 11 February 2009 O’Dwyer FM, made consent orders for the parents to have equal shared parental responsibility, for the children to live with the mother, and the children to spend time with the father each Saturday between 10.00am and 5.00pm.  Regular time did not take place. 

4. The father moved to Queensland and worked in the (omitted) in the (omitted), and for much of the time, he lived in a camp at the (omitted) or near the (omitted).  He came to Melbourne and saw the children on a few occasions.  There is some dispute as to how much.  In February 2010 the parties reconciled and the mother and children moved to (omitted).  The father continued to work, returning to (omitted) between his periods of working in the camp.  The mother says that he spent 90 per cent of his time at the (omitted).  The father said he was back in between rosters for four days or five days. 

5. He says that when the parties were together, he was much involved with the children.  The mother says he was not.  That period of living together finished in April 2011 when the mother returned to Victoria with the children. The circumstances in which that occurred are disputed.  It is not necessary to resolve precisely what happened.  The father then saw the children on a few occasions in Victoria.  The mother says twice in 2011 and twice in 2012.  The father says perhaps a few more.

6. In September 2012 the father was in Victoria for a few days.  There was an arrangement for the children to spend time with him.  That was done by text message.  It is now common ground that it was to be only day time for an hour or so, but in fact the father kept them, unwisely as he now acknowledges, for two days before they were eventually returned.  The father has not seen the children since September 2012. 

7. In early 2013 the father returned to Victoria.  He now has full-time employment as a (omitted), in one of the (omitted).  In September 2012 the police were involved.  The mother applied for and obtained an intervention order, partly based on the over holding, but particularly based on some threatening text messages which she received from the father which I will return to a little later. 

8. The parenting provisions of the Family Law Act 1975 (Cth) are contained in Part VII. The objects of the act and the principles behind the act are contained in s.60CC which includes the benefit to children of having a meaningful relationship with both parents and the need to protect the children from harm, and to ensure the children receive adequate and proper parenting. Section 60CA provides that the best interests of the children are the paramount consideration in making parenting orders, and s.60CC contains the best interests considerations.

9. Section 61DA contains a presumption that it is in the best interests of the children for parents to have equal shared parental responsibility. In the written proposed minutes of order from each party, neither is proposing an equal shared parental responsibility order although there is one currently in existence because the orders of 11 February 2009 are still extant. They will need to be discharged in whole or in part for the purposes of making interim orders.

10. The mother, as I will detail shortly, makes some allegations of family violence, actual physical assaults, a punch in the stomach, an attempt to strangle, throwing things and holding a lighter under the mother’s chin, threatening to slit her throat, being aggressive, and non-verbal aggression, the text messages which I will refer to can be interpreted as, potentially meeting the definition of family violence because of their threatening nature.  Thus inappropriate to apply the presumption. 

11. These allegations of the mother are all contested by the father.  He acknowledges the text messages and he puts a different interpretation on them.  The presumption may ultimately be rebutted because there are reasonable grounds to believe that there has been family violence, or the court might otherwise be satisfied it is not in the best interests of the children to make such an order.  Whether the presumption is rebutted cannot be decided at an interim hearing. 

12. I therefore have to determine the interim application looking at the best interests considerations in s.60CC. The father’s material are his application, an affidavit by him, an affidavit by his mother, the paternal grandmother, an affidavit by his partner, and an affidavit by Mr B, a psychologist. There is also an affidavit by the father’s solicitor, Ms Taylor. The mother’s material is her response and an affidavit by her and an affidavit by her mother.

13. In terms of the need for supervision, the mother refers to a history of family violence.  She alleges that he would abuse her and she sets that out in paragraph 10 of her affidavit.  She says that abuse occurred in front of the children.  She makes allegations of actual violence, some of which I have already referred to.  She says that the children have witnessed the father’s physical and verbal abuse.  She says he has a significant anger management problem.  She makes allegations of his use of marijuana and allegations of excessive use of alcohol. 

14. As independent material in support of her allegations, she annexes a mental health plan from 2007, a mental health plan prepared by a medical practitioner, Dr U, from a clinic in (omitted).  The father’s problem is described as anxiety attacks and persistent anger for 15 years.  There is a referral to Mr M, a psychologist.  The mother also annexes a warning letter in more recent times from the father’s employer, a final warning which says that he had been directed to attend a training program.  He did not attend and the letter says that the employer has good grounds to believe that he was too drunk to attend that program. 

15. So the mother relies on some independent evidence.  The mother’s concerns are based around historical concerns because of what she alleges is the father’s behaviour.  Then there is the father’s over holding of the children in September 2012 in circumstances where he had seen little of the children, seen them only on a few occasions since April 2012.  These are children nearly seven and five. The mother refers to text messages which she has received since then, one of which says:

    I know where you live.  Watch yourself.  I know where the kids go to school so be careful.  Don’t forget it.  I mean it.

    And another:

    I’m coming to get my kids.  I gave you a chance, and you are keeping them against their will.  I will find them, don’t you worry.

16. The mother applied for and was granted an intervention order.  She alleges breaches of that intervention order because she says the father has rung her on numerous occasions.  The father says of those text messages that he acknowledges sending them but said he was frustrated because he could not see his children, and he was not making any allegations of real threat. 

17. Ms Taylor’s affidavit which is the father’s solicitor’s affidavit describes and annexes correspondence in which it is proposed that there be an assessment of the father’s mental state or psychological state.  There was no agreement and so Ms Taylor arranged for Mr B, a very experienced psychologist, to make an assessment of the father.  Mr B interviewed the father.  He had the father take two diagnostic tests, the State Trait Anger Expression Inventory and the Personality Assessment Inventory.  The first showed Mr Ferguson within the normal range and the second showed no marked elevation that should be considered to indicate the presence of clinical psychotherapy. 

18. The criticism is made, on behalf of the mother of that report that Mr B had not seen the mother, had not seen the children and had not seen the material filed by the mother.  Mr B had not seen the recent text messages that I have just referred to. 

19. The father’s mother has a reasonably lengthy affidavit which sets out a number of criticisms of the mother which are, as it is put on behalf of the mother, unnecessary.  The issue of this case is the circumstances in which the father should be seeing his children.  There is also the affidavit from the father’s partner, Ms K.  She has known the father for six months.  They have been living together for a month at the time she affirmed her affidavit which was on 23 April 2013. 

20. It is now about two and a half months that they have been living together.  She has a 10 year old daughter who lives with them.  She describes the father as sociable, gets along well with her extended family and friends and she has never observed any anger management issues, never seen him angry, never seen him yell, he is easy to talk to, easy to resolve issues with and easy to live with.  His mother, that is the father’s mother, says similar things of his personality. 

21. On the other hand, the mother’s mother, the maternal grandmother, supports the mother in her allegations about the father’s behaviour.

22. The primary best interest considerations in s.60CC is the benefit to the children of having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

23. The first matter to be looked at is whether there is a need for supervision at all.  Ms Taylor for the father pointed out that some of the mother’s allegations of the father’s abuse and family violence are historical and therefore must go back beyond orders of 11 February 2009 which did not provide for supervision. 

24. At the forefront of the mother’s proposal for supervision is the over-holding of the children in September 2012 which does show a lack of understanding or disregard for the needs of children at this age who were withheld from their primary carer with people who, admittedly, they were familiar with, that is their father and their grandmother but whom they had not seen except fleetingly for over a year and probably close to 18 months.  The father’s text messages that I have referred to do show a person with some anger management problems.  No doubt, the father was frustrated that he could not see his children but a text message:

    I know where you live.  Watch yourself.  I know where the kids go to school so be careful.

    in the context of the sort of relationship that there existed at that time between the mother and the father could only be interpreted by the mother as a threat to her wellbeing, perhaps a threat to her physical wellbeing and possibly a threat to the children’s physical wellbeing. 

25. There is a need for supervision until there can be some further assessment.  The question is who should be the supervisor.  During the 2011/2012 period when the mother was in Victoria, she lived close to the paternal grandmother and the children spent time with their paternal grandmother including some overnight time.  The amount of that time is disputed.  The paternal grandmother puts it as much more frequently than the mother does but the children did spend time overnight with the grandmother and the inference is that that was successful.  Successful in the sense that the children enjoyed the time but, in particular, that they were well cared for.  The mother considers that the paternal grandmother was complicit in the over-holding in September 2012.  The paternal grandmother says that was not so.  She went on a holiday to (omitted) and said she was not part of the over-holding. 

26. The fact that the children spent overnight time with the paternal grandmother and it was successful, and the mother did not have any concerns suggests that the paternal grandmother is well capable of caring for the children, despite what she might say about the mother and her support for the father.  She has the grandchildren’s welfare at heart not just in the physical sense that they should be properly cared for if they are in her home but that they should be loved and supported emotionally. 

27. I am satisfied that she would be an adequate supervisor, a suitable supervisor.  So far as the father’s partner is concerned, she has not met the children and the closeness of her relationship as the domestic partner of the father might put her in a difficult position if the circumstances arose which meant that a supervisor should intervene.  I do not see her as a suitable supervisor.  I do not consider it is an occasion which requires professional supervision.  It is a matter of balancing the benefit to the children of the meaningful relationship with their father against the need to protect the children from harm.  I am conscious that the legislation now requires that greater weight is to be given to the protection consideration than it is to the relationship consideration. 

28. I do need to take into account two of the additional considerations. The first is that the mother is the children’s primary carer, almost their sole carer for probably two years. There is also the fact that the father is not paying child support which is a best interest consideration in s.60CC. I am told from the bar table that the mother has been excused by Centrelink from making an application to the Child Support Agency for assessment of child support because of the family violence and that is understandable.

29. The father could have volunteered to assist in supporting the children.  He is a (omitted) employed in one of the (omitted) in the (omitted).  It is well known that that is a well paid employment.  I take that into account as well.  I am satisfied that, even in bearing all of that in mind, that the paternal grandmother is a suitable supervisor.

30. So far as the time is concerned, the children have not seen their father since September 2012.  They have seen little of him since April 2011.  The relationship between the parents is strained which is an under description of the relationship.  It is distrustful.  I have to bear in mind that the principal carer, their mother, is apprehensive about the children spending time with their father.  When all those things are put together, until there can be more information obtained, in particular a family report, the children's best interests will be served by there being daytime time only.  What I propose is to order daytime on either Saturday or Sunday depending on which is the more convenient time from 9.00am to 12 noon for four weeks and then after that, from 9.00am to 4.00pm. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Phipps.

Date:  16 August 2013