Grishin and Ebbs

[2013] FamCA 501

FAMILY COURT OF AUSTRALIA

GRISHIN & EBBS [2013] FamCA 501

FAMILY LAW – CHILDREN – Interim proceedings – What time the father should spend with the child – Supervised time – Where the father’s supervised time should be exercised – Whether the parties’ proposed supervisors are deemed suitable by the Court

Family Law Act 1975 (Cth)

APPLICANT: Mr Grishin

RESPONDENT: Ms Ebbs

FILE NUMBER: PAC 4460 of 2012

DATE DELIVERED: 17 June 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 17 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Schroder

SOLICITOR FOR THE APPLICANT: Smythe Wozniak Legal

SOLICITOR FOR THE RESPONDENT: Ms Hope
Marsdens Law Group

Orders (AS AMENDED PURSUANT TO RULE 17.02):

1. That I discharge all previous parenting orders in respect of the child T, (“the child”) born … January 2011.

2. That, pending further order, the child shall live with the Mother. 

3. That, pending further order, the Mother shall have sole parental responsibility for the child.

4. That, pending further order, the Father shall spend time with the subject child on Thursday and Sunday in each week between the hours of 11 am and 2 pm. That time is to be exercised at the home of Ms S situate at … B Street, Suburb C, New South Wales.

5. That the Father’s time with the child shall be supervised at all times by Ms S.

6. That the Mother shall deliver the child to Ms S’s residence at … B Street, Suburb C at the commencement of time and collect the child from that address at the expiration of each period of time.

7. That the Father shall be present at those premises at the commencement of each such period of time but shall not leave those premises and shall not seek, in any way, to engage with or communicate with the Mother.

8. That the Mother shall not endeavour at that time to speak with or have any form of communication with the Father.

9. That pursuant to s 62G of the Family Law Act 1975 a Family Consultant of this Registry shall prepare a family report for the assistance of the Court. The Family Consultant shall address the matters contained in s 60CC of the Family Law Act 1975 as set out below:

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;

   (b)      the nature of the relationship of the child with:

   (i) each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii) to spend time with the child; and

   (iii) to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i) each of the child's parents; and

   (ii) any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii) the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j) any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i) the nature of the order;

   (ii) the circumstances in which the order was made;

   (iii)any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v) any other relevant matter;

   (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)      any other fact or circumstance that the court thinks is relevant.

1. That the parties shall attend all appointments nominated by the Family Consultant and ensure that the child attends all appointments as notified by the Family Consultant.

2. That the parties shall use their best endeavour to have any other member of their family to attend upon the Family Consultant that may be of significance for the purpose of such a report.

3. That the Family Consultant shall have leave to inspect any subpoena material where leave has been granted previously for the parties to inspect. 

4. That I place the matter in the list of defended matters awaiting the allocation of a hearing date for three (3) days before any Judge. 

5. That the matter shall be relisted before the Judge no less than seven (7) days after the report is released for further orders and directions.

6. That, within seven (7) days of the criminal proceedings against the Father being concluded, the solicitor for the Father shall write to the Mother’s solicitor providing details of the outcome.    

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grishin & Ebbs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:   PAC4460 of 2012

Mr Grishin

Applicant

And

Ms Ebbs

Respondent

REASONS FOR JUDGMENT

1. This matter concerns the amount of time that the father is to spend with the parties’ child T, (“the child”) who was born in January 2011 and is thus approximately 2 and a half years of age.

2. The parties commenced cohabitation in about October 2010 and, as I have said, the child was born in January 2011.  The parties separated in about 2012, and on 21 March 2012, some agreement was reached between the parties as to the child’s living arrangements. 

3. In about June 2012, the father consented, on a without admissions basis, to an Apprehended Violence Order. As I understand it, there was some form of property settlement or agreement reached at about this time, as a result of which the mother received a sum of money.

4. The present situation is that the father has not seen the child since about December 2012.  It is the mother’s case that she, at all times, has indicated that she would want the child to see the father at a contact centre if time with the father was to resume.  The child, of course, is a very young child.  These parties have racked up a most impressive record of involvement of police in their dealings with each other, particularly in relation to their dealings in respect of this very young child.

5. I was referred to a body of material by each of the parties, which I did my best to read over the luncheon adjournment.  The entries therein do neither of the parties a great deal of credit.

6. The Family Law Act1975 (Cth) sets out the primary considerations of the Court as being that a child should have a meaningful relationship with both parents, subject only to the need to protect the child from any risk of harm. The mother, as I understand it, says the child does need to be protected from the father because of matters that have been raised in the extensive criminal record that I have referred to, and further, in respect of charges which are to be heard in a criminal court later this week.

7. The father’s case is that he should see the child as often as can be arranged and, as I understand it, he has acknowledged that there is a need for supervision.  So far as I am concerned there are three major reasons why supervision may be ordered in a case.  The first is to protect the child, the second is to endeavour to allay the fears of the residential parent and the third is to provide some protection to a person against whom allegations have been made.  It is clear that supervision is necessary in this case. 

8. Each of the parties have put forward a potential supervisor.  The father has put forward his daughter, Ms S, who has sworn an affidavit and who has entered into an undertaking in writing to this Court as to her duties as a supervisor. 

9. I heard Ms S examined in chief and cross-examined today.  I am satisfied that she has an appropriate understanding of that which is required of her as a supervisor.  It is suggested that because she is the daughter of the father that it may be more difficult for her than would otherwise be the case to deal with the father if she observes anything untoward.  However I accept her evidence on oath, for example, if the father attended contact time under the influence of alcohol that she would not allow him to spend time with the child.  I am satisfied that she has given the matter considerable thought and I am satisfied that she both understands and can discharge the obligations imposed upon her as a supervisor.

10. The mother’s sister, Ms D, was called and gave evidence as to her understanding of being a supervisor.  She volunteered this statement, which I think I have noted correctly, “I am not going to be watching over him like a hawk”.  In my view, that would indicate that she does not understand the obligations imposed upon her as a proposed supervisor for her niece. 

11. I am satisfied that it is appropriate that, for a child of tender years such as this child, the preference appears to be for frequent, but shorter, periods of time. The father has suggested there should be three occasions in each week for some reasonable period of time being Monday, Thursday and Sunday. 

12. From what I understand, the father’s daughter, Ms S, is self-employed and works two days each week being Wednesday and Saturday.

13. To my mind, it is important to foster the relationship between the child and the father, and that the child spends time with the father in a situation that provides comfort and support for the child.  It may well be that the mother being seen to bring the child for periods of time is, of itself, reassurance for the child.  In my view there has to be a mechanism in force where the parties do not come face to face. 

14. I propose to order that, pending further order, the mother shall have sole parental responsibility for the child. To my mind, to endeavour to make any order for these parents to communicate with each other is something not to be desired.

15. I am minded to order that the mother deliver the child to the supervisor at her home on the occasions that I will specify shortly in these reasons for Judgment.

16. I propose to order that the father be present at the home of his daughter.  He shall not, under any circumstances, leave the home.  The father shall not endeavour to contact the mother; he should not endeavour to speak to her and he certainly should not endeavour to approach her when the child is being exchanged between the mother and his daughter.  Should he do so, I would expect the matter to be returned to the list quickly.

17. I am satisfied that, pending further order, the father spending time with the child on three occasions each week is appropriate and I am of the view that such occasions should be on Thursday and Sunday, from 11.00 am until 2.00 pm.

18. The orders that I make are set out at the beginning of these reasons for Judgment.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 17 June 2013.

Legal Associate:      

Date:    24 July 2013