Grant and Aiden

[2010] FamCA 1218

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN [2010] FamCA 1218

FAMILY LAW – CHILDREN – Interim – With whom a child spends time

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INDEPENDENT CHILDREN’S LAWYER: MacGregor Solicitors

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 8 October 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 8 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Septimus Jones & Lee

COUNSEL FOR THE RESPONDENT: Mr Burns

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms MacGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MacGregor Solicitors

Orders

1. That the hearing date of 17 January 2011 shall be vacated and the case listed for five days before me starting on 31 January 2011.

2. That each party shall file and serve affidavits upon which they seek to rely by 4.00pm on 10 January 2011.

3. That Registrar Mestrovic is requested to hold a telephone mention on a date to be notified to the parties as soon as practicable after 10 January 2011 to ensure the case is ready for trial.

4. That by 4.00pm on 25 January 2011 each party shall file and serve:

   (a)A list of witnesses;

   (b)A Minute of Orders sought; and

   (c)A case outline.

5. That the ICL shall be permitted to provide Dr E with any material she wants him to read before giving evidence.

6. That the ICL shall be permitted to file and serve subpoenas returnable on 25 November 2010 at 9.30am in the Registrar’s Subpoena List.

7. That until further order the child X born … August 2006 shall spend time with the father each Sunday from 10.00am until 5.00pm commencing Sunday 10 October 2010, save that in lieu of spending time with him on 2 January 2011, she shall spend make-up time with him on 15 January 2011.

8. That for the purposes of the previous paragraph of these orders:

   (a)The changeovers shall occur at Y Contact Centre, and for that purpose each parent shall within 7 days do all acts and sign all documents required by the Contact Centre, and until the family is accepted at Y Contact Centre, the changeovers shall occur in the foyer of the Y Police Station;

   (b)The father’s aunt shall be in substantial attendance, or if she is unavailable, such other person as agreed between the parties and failing agreement, a person approved by the ICL.

9. That save for any documented medical emergency, both the father and the mother and their servants or agents shall be and are herby restrained from taking the child to any doctor, psychologist, psychiatrist, or other health professional for any assessment or counselling and the like (except as requested by the ICL or the Court).

10. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5094 of 2008

MR GRANT

Applicant

and

MS AIDEN

Respondent

REASONS FOR JUDGMENT

1. X is four, and in the next few months I will hear all the evidence to decide if she shall continue to live with her mother or move to live with her father, what arrangements there will be for her to spend time with the other parent, and whether that will be supervised time.  Today I need just to decide some interim arrangements. 

2. Despite final consent orders in December 2009 for the father to spend time with the child he has not seen her since April 2010.  So those orders only lasted in an operative form for a very short period.

3. On 15 May, the mother obtained an intervention order from a Magistrates Court in the father’s absence.  The orders precluded him from seeing the child, the Magistrate having suspended the spending time regime until further order. 

4. The case started before me earlier this week as a first day LAT hearing after a long chequered history in the Federal Magistrates Court.  The mother was unrepresented earlier this week.  I adjourned this interim question, and the issue of trial directions, until today so that the mother could arrange legal representation.  She has done that.  She is represented today by counsel. 

5. Otherwise, I ordered a Family Report to be prepared for the trial.  And I permitted the father to file and serve an affidavit today as to the events that had occurred since December 2009, answering paragraphs 14 to 30 of the mother’s affidavit filed on 18 September 2010.  His affidavit was in fact filed a day or two ago, on 6 October. 

6. The 15 December 2009 orders provided for the child to live with her mother, for shared parental responsibility and for the child to spend Saturday and Sunday in one week and Sunday and Monday in other week with her father, building up to alternate weekends from August of this year, plus some other holiday time.

7. The mother says through counsel today that the father should only see the child now on a fully supervised basis in a contact centre.  She has found one available to start in about two weeks.  The ICL says that it is a private centre and that it costs about $130 per session.  The mother says she will pay – well, at least for a fortnightly session.  The father says that there should be no supervision at all – that is, none is required – but he is happy to have his Aunty, the child’s great-aunt, in substantial attendance.  That is largely designed to protect him from fresh allegations of any sort.

8. The ICL says there is no need for supervision at all, nor for that matter, as I understand it, even for substantial attendance.  But she accepts the father’s proposal to have his aunt in substantial attendance, with the rider that if the aunt is not available, there should be provision for the parties to agree and the ICL to approve someone else.  She also supports the father’s suggestion that change-overs occur at a contact centre.  Apparently, Y Contact Centre can start in two weeks.  And until then at the Y Police Station, which is just nearby.

9. In her affidavit, the mother describes what sounds like an horrendous state of affairs, with the child asking not to go on visits, crying, hiding under tables and blankets, and shielding herself behind her mother on sighting her father.  She describes the child returning from visits silent, withdrawn, sometimes with “a fixed stare”.  She says that the child complained that her head hurts, and her mood lasts for some time.  The mother sets out complaints by the child that the father changes her into different clothing.  She says the child sometimes returns home with wet hair as if she has had a shower.

10. She describes handovers where the father has been derogatory and demeaning towards her in front of the child, of him turning up with slurred speech and smelling of alcohol.  And that on one occasion – 24 March 2010 – he was “physically becoming abusive” to the child.  Further, that the child had been traumatised and had nightmares and “appeared to be running in her sleep.”

11. The mother described the father having threatened to take the child out of the Early Learning Centre where she has been attending, and that he wrote to the school advising he would not be responsible for paying. 

12. On 2 May, the mother took the child to see Dr L. Dr L’s certificate, annexed to the mother’s affidavit, simply relates that:

    [The child] is receiving medical treatment and psychological assessments.  And until these are completed she will be unfit to continue her contact visits.

13. Since 5 May 2010, the mother has been taking the child to see a psychologist, Ms S.  I note that Ms S is also the mother’s psychologist.  The mother says she was in the past, but the material, including Ms S’s report, suggests that the mother’s counselling relationship is recent, if not current. 

14. Ms S has filed an affidavit.  She says there should be no contact at all between the child and her father, even supervised.  She says the risks of harm are too high. 

15. The mother then annexes the intervention order to her affidavit.  It was made at the Magistrates Court at Melbourne on 13 May 2010, in favour of the mother and X and the mother’s other two sons, to last until 13 May 2015.

16. For his part, the father denies the mother’s allegations and gives a version as to what has occurred since the 2009 orders were made which, if accepted, paints an equally horrendous picture, but of the mother’s behaviour, not his.  He says that he has only seen the child on 18 occasions since the orders were made, not thirty, as the mother says.  He described the child settling quickly with him and laughing and enjoying time with him.  He described various difficulties at changeovers, including what sounded like a bizarre arrangement on some occasions, where her mother walks her into McDonald’s for changeover, with the child’s head covered in a jacket.  The father says that on those occasions, his daughter pokes her head out and gives him a cheeky smile from under the jacket. 

17. He gives simple explanations for changing her clothes, or for a shower on one occasion after she had been at the beach.  He agreed that there had been issues over the Early Learning Centre fees and he had, in fact, written saying he could not afford the fees.  And he had asked the mother directly to withdraw her intervention order proceedings to save money that could be spent on the school fees. 

18. The mother had suggested in her material that the father was to be charged in relation to some earlier misconduct towards one of her sons.  He says, on the other hand, he was spoken to by police but there was no suggestion he would be charged.  To the contrary, he said he was told it was unlikely. 

19. The father expresses the concern in his material that in the course of proceedings in the past, Monahan FM had prohibited the parties from taking the child to professionals unless requested by the ICL.  He said that was because the mother had taken the child to see numerous professionals.  He said that unfortunately that was not written into the final orders and he was concerned that the child was again being taken to a psychologist.

20. He was also concerned by the interference of a police officer, Sergeant A, whom he said appears to have become a personal friend of the mother. 

21. I must apply the objects and principles in the Family Law Act in interim as well as final proceedings.  The child’s best interests remain the paramount concern of the Court.  In assessing her circumstances, without the benefit of the testing of all this complex evidence, I must take into account that as recently as December 2009 – just several months before these orders were no longer effected because of the intervention order – the mother had consented to the child spending substantial time with the father.

22. Although she suggested to me in court earlier this week that she felt pressured into agreeing to the orders, I note that the orders carefully recite that she did obtain legal advice before they were made. 

23. Again, in assessing the child’s best interests without the benefit of having all the evidence tested, I also cannot overlook the previous expert reports about this family.  I note that a Family Report, prepared by order of the Federal Magistrates Court and dated 1 December 2008, was limited by the fact that the mother did not attend and did not present the child to be interviewed by the Family Report writer. 

24. A Report dated 21 February 2009 showed that the mother expressed concerns that the child was sexually abused by her father in September 2007 but she was “too upset to be more specific.”

25. The mother told the report writer that she herself was raped by the father “every night from December 2004 until November 2005.”  And she told the report writer she was seeing the psychologist, Ms S. 

26. That Report described the mother’s sons, then aged 10 and 13, as both saying the household was calmer without the father’s yelling.  The Report writer described X as quite relaxed and contented around her father in the course of the session.  The writer expressed the concern that the mother’s capacity to parent was affected by her psychological health.  She had difficulty in focusing and had symptoms of post-trauma.  The Report writer said the mother appeared to have difficulty identifying what might be her own feelings of anxiety for the children as opposed to the children’s anxiety.

27. The Report writer noted that the father denied the sexual abuse allegations.  She also noted that he appeared to be unable to acknowledge that any of his behaviour in the past had had any traumatic effect on the family.

28. She recommended ongoing supervised time at GordonCare.  That continued for some time.  The last Report then was on 16 June 2009.  The writer noted there were numerous occasions when the mother did not take the child for contact.  In the meantime, orders had been made for the father to spend time with the child at GordonCare in one week and outside the contact centre at a Playcentre in the other week, with the mother initially in the vicinity.

29. The Report noted the mother’s presentation as angry and unco-operative.  It noted that the father appeared to be in good health and more settled than in the last instance.  He described always taking his Aunty when he saw the child to add a layer of protection from allegations.  On that last occasion with the Family Report writer, she noted the child was reluctant to see her father, and stayed closer to her mother, appearing to be quiet and upset when she was with her father alone without her mother, and the Report writer returned her to her mother. 

30. That last Family Report noted the mother as still psychologically fragile and increasingly hostile to the requirements of the Court.  The child was noted as affected by the conflict between her parents and by the mother’s hostility to the father.  She was described as affected by her mother’s anger, but she was described too by GordonCare in that same time period as happy to see her father and engaging well with him.  The Report concluded that the mother’s mental health required assessment.  And that the father should continue to see the child and that if the police took no action in relation to the mother’s allegations, the time should be increased and unsupervised. 

31. Dr E provided a report in relation to the mother dated 15 October 2009.  He spoke about the need for the Court to look at all the evidence.

32. He noted the mother’s description of the father which depicted him as a “predatory individual”.  If that were found to be true, then her presentation was consistent with post-traumatic stress disorder.  If not, then he referred to her unwavering belief system as of “psychotic intensity,” and that it would pose a threat to her ability to manage and care for the child appropriately. 

33. It was after those Reports that the matter came before the Federal Magistrates Court and was resolved by the parties by consent.  I have referred to those Reports in some detail, not because I can make findings at this stage as to the accuracy of them, but because they give insight into the same sorts of issues and concerns being raised by the mother for the long period prior to the December 2009 orders, as to the father’s violence and sexual abuse and hostility towards her and towards the child, as the allegations made by her in the short period between the consent orders and the intervention order that effectively ended this Court’s orders.

34. As the ICL put it, the father was required to jump through hoops and to persist with supervised time with the child at GordonCare, and then on a graduated basis outside GordonCare until the Court, comfortable that it was going well, relaxed those orders.  And then ultimately, with the benefit of a Family Report and the ICL’s input, legal representation for the father and for the ICL, and advice for the mother from a lawyer, there was consent to substantial unsupervised time between father and daughter.

35. The weight of the current report of the counsellor, Ms S, is limited by her clear partisanship on the face of the report in favour of the mother and her version of events.  She has not met the father nor seen the child with him.  And she seemed, in her report, dismissive of any positive reports of their relationship.  She makes emphatic statements about it being contrary to the child’s interests to have any contact at all with her father.  She talks of a risk to the child in even seeing her father, and yet that is contrary to much of the other material.  And she certainly makes no reference to the fact that her capacity to make those judgments is limited by the fact that she has a limited range of involvement with the family.

36. Although the mother refers to material in her affidavit to support her account of changeovers that are really at the heart of why she seemed to take out the intervention order, I wonder about the substance.  Most particularly, she refers in her affidavit to an eye witness to the father’s bad behaviour at a changeover on 13 March 2010.  A statement is annexed to her affidavit.  It does not support her account. 

37. Similarly, a police officer – Sergeant A – whom she refers to as assisting in various law enforcement capacities, described herself to me earlier this week, when she attended plain clothed at court, without a subpoena, and was sitting with the mother’s family or friends, as a “support” to the mother.  All I can say at this point – and my view might change when I hear more evidence at the trial – is that that police officer’s role is sufficiently ambiguous to potentially undermine the weight of what she might say. 

38. The father’s account earlier this week as to why he did not attend court for the final hearing of the intervention order left much to be desired.  Again, I am sure that is something that will be explored in further detail at the trial. 

39. Otherwise though, the mother’s allegations are very much of the same tenor as allegations that she has made for a very substantial period of time.  When her recent affidavit is examined in detail there is little substance other than in relation to poor handovers.

40. There seems to me to be no reason why this little girl’s relationship with her father should remain interrupted as a result of the intervention order which – it might well be through the father’s own fault – was made in his absence and brought about such an abrupt end to the child’s time with her father.  It concerns me in such a complex case that the time this little girl was spending with her father was so rudely interrupted when, through no fault of his or her own, the Magistrate naturally had such limited information at their fingertips about the complexity.  Even the mother concedes that the child should be seeing her father, albeit in a supervised setting.

41. I do not propose going with her proposal of the supervised setting because of the very substantial cost involved, it would mean less opportunities for the child to be with her father, and on all this material I cannot see a need for that sort of strict supervision.  In addition, I am being offered an alternative whereby a responsible adult will be in substantial attendance.  For those reasons combined, I am satisfied that, just as it was considered to be in the child’s best interests in December last year after very long and significant proceedings that she spend unsupervised time with her father, that should occur now, provided that – and everyone seems to be agreed about this – the changeovers occur in a different setting.

42. Mr Marchetti for the father, supported by the ICL, suggests changeovers occur at Y Contact Centre, and until then at Y Police Station.  Mr Burns, for the mother, was not heard specifically on that point but that was only because his proposal was of a different nature.  I am satisfied that it follows logically that he would not argue with there being that sort of control around changeovers, given his client indicates they were unsuccessful.  Now, during the break there was going to be some inquiry made of the woman that I do not mean to be disrespectful in calling “the father’s Aunty”, but that is how she has been referred to.

RECORDED:   NOT TRANSCRIBED

1. And I propose making that order but on the basis that was suggested so that there are alternatives if need be.  In a moment we will fix up when that is to start and so on.  Christmas Day, Mr Marchetti raised quite properly, needs to be addressed.  It is entirely appropriate that the child be with her mother on Christmas Day and to see her father the day after if that is considered suitable by the mother.  I was asked to make an order that there be no more counselling for the child until the matter is heard and I am satisfied that is appropriate.  The ICL asked me to make that order.

2. I am very concerned, given that the judicial officer in charge of the matter in the past has been concerned by that.  That this little girl now is being taken to someone who has been heavily involved with the mother.  And I am not quite sure what is going on and would prefer the child not to be put in that position at the age of 4, any longer until I can hear all the evidence in just a couple of months’ time.  And otherwise, the date that I could come up with, I think, is the week of 31 January. 

RECORDED   :   NOT TRANSCRIBED

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 8 October 2010.

Associate: 

Date:  8 October 2010