Hall and Hall (No 4)

[2014] FamCA 670

FAMILY COURT OF AUSTRALIA

HALL & HALL (NO 4) [2014] FamCA 670

FAMILY LAW – CHILDREN – Interim Orders – appointment of supervisor – where previous orders provided for the parties to appoint an independent supervisor to supervise the children during time spent with the father – unclear whether organisation or individual required the agreement of parties - where parties agree upon independent organisation but are not able to agree upon specific supervisor – where mother’s preferred supervisor has already commenced as a supervisor - orders made appointing individual from the agreed organisation as independent supervisor.

FAMILY LAW – CHILDREN – Interim Orders – where father seeks additional time with children due to holiday plans – mother opposes the application – best interests of the children – additional mid-week time not in best interests of the children.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Hall

RESPONDENT: Ms Hall

FILE NUMBER: ADC 3671 of 2013

DATE DELIVERED: 13 August 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 13 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’ Shannessy with Mr Kennedy

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE RESPONDENT: Mr Ackmann QC with Ms Kari

SOLICITOR FOR THE RESPONDENT: Barnes Brisnley Shaw Lawyers

Orders

1. Paragraph 5 of the order made by her Honour Justice Dawe on 17 June 2014 be discharged

2. Within seven days, the husband and the wife make all appropriate arrangements and confirm any current arrangements for Ms LH, Ms PB and Ms DS (in that order or priority) to be appointed from HD Care to act as an independent supervisors at all times the children K born … 2003 and D born … 2005 spend with the husband pursuant to the orders of this court:-

   (a)The cost of such independent supervisor to be borne by the husband;

   (b)The wife’s solicitors to provide the independent supervisor with a copy of these orders and this judgment. 

3. That the time that the children shall spend with the husband pursuant to order 6 of orders made 17 June 2014 will be suspended from 19 August 2014 to 3 September 2014 inclusive.

4. That additional to the time that the father shall spend with the children pursuant to paragraph 6 of the orders made 17 June 2014, the father shall spend time with the children on one additional Sunday from 9 am to 7 pm on a date to be agreed between the parties, but in any event to occur not later than 15 October 2014. 

5. That all communication between the husband and the said independent supervisor shall be directly made with the said supervisor.

6. That the husband do pay HD Care in respect of the costs of the said supervisor by payment within 14 days to the wife of any invoice provided by the wife to the husband being an invoice from HD Care to the wife. 

7. That it shall not be a term and condition of the supervision of the husband’s time by the named supervisors that they shall be required to take notes of their observations of the interaction between the husband and the children, nor shall there be any obligation to provide a report in respect of same. 

8. That the Application in the Case filed 18 July 2014 and the Response filed 8 August 2014 be dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hall & Hall (No 4) 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 ADELAIDE

FILE NUMBER: ADC 3671 of 2013

Mr Hall

Applicant

And

Ms Hall

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. The proceedings today arise from an application in a case filed by the father on 18 July 2014.  In that document the father seeks orders that would see the appointment of Ms PB of HD Care to supervise his time with the infant children, K born in 2003 and currently aged 10 years, and D born in 2005 and currently aged 8 years.  The relevant orders are orders made by the Honourable Justice Dawe on 17 June 2014.  I will come to those orders shortly, but it is integral and against the context of this now complex and long-running matter, that the issue of supervision looms large.

2. Additionally, but of less moment in terms of the overall issues to be determined, the father seeks compensatory or additional time which appears to have now changed albeit subtly from that which is set out in the application to something a little less, namely, three further periods of mid-week time and one further period of time on a Sunday.  The third substantive order sought by the father is that there be a change to paragraphs 5 of the orders made by her Honour in that there be an equitable arrangement in terms of the pickup and the delivery of the children at the commencement and conclusion of his time with them.

3. The mother filed a response on 8 August 2014 and in terms of the substantive matter seeks orders that Ms LH of HD Care be appointed to supervise the husband’s time with the children.  For reasons that will become apparent the mother also seeks further orders that the communication between the husband, and the particular supervisor be direct in terms of the orders sought and set out with better particularity in the affidavit material supporting the response. 

4. The communication is not to occur between the husband and the officers of HD Care.  The wife also seeks an order that the husband do pay HD Care in respect of the costs of the supervisor with the payment mechanism to be triggered by the wife’s receiving the invoice from HD Care at first instance and forwarding the same to the husband for his prompt payment.  At first blush it would seem that the issues of dispute between the parties are narrow and that in all the circumstances this was a matter that could or should have been the subject of ready and easy resolution. 

5. It is not, and the matter has been argued at length and with considerable skill and assistance by counsel representing each of the parties.  It should be noted that the parties are present and that in and of itself indicates that they have an intense interest in the proceedings that today at least relate to the issues in respect of their children.  The genesis of the proceedings emanate from an order made by her Honour on 9 December 2013.  It is important to note that the order provided that the parties have equal-shared parental responsibility for the named children. 

6. The order also provided for the time that the children would spend with their father, and whilst there has been, again, some subtle changes to those arrangements, in a general sense the tenor and import of her Honour’s order of 9 December 2013 continues to the present date.  Importantly, however, the order that provides for the children to spend time with their father was subject to supervision by nominated supervisors are essentially members of the husband’s family. 

7. My limited involvement in this matter was such that that issue, namely, the question of supervision and the identity of the supervisors was a matter that came before me in January of 2014.  It is not, I think, an unfair summary of the mother’s position to say that she railed against the supervisors as set out in paragraph 4 of the order following allegations she makes that the supervisors at particular times were not able to properly supervise, moderate and report, adversely if necessary, on the interaction between the father and the children.

8. It was a submission made before me that the mother sought that there be a supervisor who was independent of parties and have no connection with either of them, but in this case with the father, and who, therefore, would be in terms of the mother’s position more reliable in their supervision.  That matter continued and was heard and determined by her Honour on 17 June 2014.  I note that in her Honour’s order she continued paragraphs 1, 2, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the order of 9 December 2013.

9. I also note that her Honour had the advantage of lengthy submissions on that occasion.  Her Honour gave detailed reasons.  And perhaps importantly in terms of the submissions made by senior counsel for the wife, her Honour had the advantage of a reviewed family report prepared by family consultant, Dr A dated and published on 8 March 2014.  I raised the report because Mr Ackmann QC, whilst not relying upon it at the commencement of the proceedings, indicated that he considered there were matters in that report that would be of assistance to my determination of the matter.

10. The report is obviously an important document, but it has its prime focus or, at least, the consideration of the important matters raised in the report are matters that are self evident in terms of the weight given to that report by her Honour in the orders of 17 June 2014.  It is demonstrable from her Honour’s order that much of that which was set out in the report found favour with her Honour and, in particular, the significant change from the position adopted by her Honour in the earlier orders and the more recent order resonates in terms of paragraph 5:-  

    Within 14 days the husband and wife make all appropriate arrangements for an independent supervisor to be appointed from either nannySA or Dial-An-Angel to act as independent supervisor at all times the children spend with the husband pursuant to the orders of this court.

11. Additionally, but of tangential relevance to the secondary orders that each of the parties seek from the court, her Honour also ordered in paragraph 5(a), namely:

    The cost of such independent supervisor to be borne by the husband.

    And in (b):

    If the parties are unable to agree upon the independent supervisor within the said 14 days then the independent supervisor to be appointed would be the one able to provide the supervision for the longest period.  If there is any difference of availability of time either on each occasion or overall future periods, or if there is no difference, then the independent supervisor who is available at the lesser cost.

    And (c):

    That the wife’s solicitors should provide the independent supervisor with a copy of these orders and this judgment.

12. The agreement of the parties as to the identity of the independent supervisor was referred to in order 6 in that there was reference to the independent supervisor being agreed, and that certain things would flow from that agreement and the subsequent appointment, namely, the arrangements in respect of the infant children to spend time with the father.  What then occurred is that for various reasons the organisations as mentioned in her Honour’s orders, namely, NannySA and Dial-An-Angel were not able to provide the service that was anticipated pursuant to her Honour’s order.

13. I am uncertain as to why that happened, but it is a matter that is, frankly, now irrelevant to the decision that I have to make.  A further part of the order that is relevant and by reference to the continued involvement of the family consultant is to highlight order 10, namely, that the parties are not to attend upon the family consultant before 1 October 2014 for a further update family report concerning the best interests of the children.  It is obvious that the parties will benefit from a timely report, and notwithstanding the generality of the matters that Dr A would comment on, it is, I think, reasonable to assume that the issue of supervision would loom large in the considerations and recommendations of the family consultant.

14. It is therefore important not just to put in place orders today which ensure that there is a promotion and a furtherance of time spent between the children and their father in order to maintain and promote a meaningful relationship, but also to ensure that when there is a further review by the family consultant there is a decent and proper platform upon which the family consultant is able to make meaningful, appropriate, and helpful recommendations to the court.

15. It may be that the parties have over-thought the matter, or it may be that the use of the words, “agreed independent supervisor” in paragraph 6 of her Honour’s order promoted a view in the minds of the parties that there needed to be a high level of consideration of the particular qualities, skill set and availability of any potential candidate who might be considered an appropriate, independent supervisor.  Whatever the position is, or whatever the intent of the order was, the consequence was that each of the parties undertook a detailed exploration and investigation of the particular qualities, abilities and skill set of potential supervisors.

16. I should pause to mention that as a result of NannySA and Dial-An-Angel not able to undertake the role, the wife was able to secure interest from HD Care.  It turns out, according to the husband, that HD Care may have had some involvement with the wife and/or the wife’s family.  There is no evidence about it and, frankly, I discount it as a relevant consideration for the purposes of the hearing today.  It is, in my view, of prime importance that an arrangement be put in place to enable a resumption of time between the children and their father but in circumstances which provide to the mother the comfort that she needs that all will be well and that there will be a person who is independent of any control by the father as she alleges.

17. The mother focused upon Ms LH.  The father focused upon Ms PB.  And if there needed to be further complication the mother then determined that if Ms LH was not available then Ms DS, a senior children’s service coordinator, had indicated an ability to fill in when the chosen supervisor was not available.  I am of the view that in respect of the order, her Honour’s focus was not on the particular qualities of any candidate who might be put forward or associated with HD Care but, rather, the fact that there would be an independent organisation who would provide suitable people for supervision.

18. To the extent that order 6 required the agreement of the independent supervisor I am of the view that it really relates to the decision as to whether it should be NannySA or Dial-An-Angel.  If I am wrong about that I think there is significant assistance that can be provided by considering paragraph 5(b) of the order which sets out how the parties are to deal with a disagreement as to the identity of the independent supervisor.  In 5(b) it was clear that her Honour considered the important factors would be that the person most likely to be selected should be the person who should commit to the longest period if there is any difference of availability of time, and if that did not highlight a point of distinction then the more mundane point of difference would be the question of cost. 

19. There was nothing in her Honour’s order which referred to particular qualities of the candidate in terms of their age, their curriculum vitae, their experience, their demeanour, their appearance, their ethnicity or their method and manner of speech.  If that had been where the matter rested one would have thought that would not have created a significant problem.  The father has accepted HD Care.  The issue is simply to put in place the appropriate arrangements.  An unfortunate distraction, however, entered into the matter which is highlighted by a consideration of a report from Ms AB who is the Chief Executive Officer of HD Care. 

20. The advent of the affidavit has unfortunately done nothing to bring the parties together but, rather, it has created another area of contention.  It is the mother’s position that HD Care will be reluctant to remain involved in the proceedings because of what she says was the aggressive demeanour of the father in dealing with HD Care.  The father denies that.  To the extent that there is any advantage in the affidavit, I suppose there is the obvious issue which is that irrespective of the right or the wrong of the matter, HD Care have indicated a clear position in terms of how they are to remain involved.

21. Whether or not the father rails against the position adopted by the HD Care frankly, it would seem sensible to work with that organisation given that they appear able to undertake the conditions and obligations created by the orders rather than to abandon HD Care and bring the proceedings to what might be considered an hiatus.  A second issue that arises from the affidavit is that to the extent that there is any information as to what it was that has caused the conflict between the interaction of the father and HD Care, there is the reference to the provision of notes by the independent supervisor. 

22. Whilst it is difficult to know what this is about, it appears, and without any suggestion to the contrary, that the supervisor who has been engaged to date, namely, Ms LH, has been vigilant and diligent in the recording of her observations of the interaction of the father and the children.  I am uncertain whether the notes are copious or brief, but I am satisfied from the submissions of counsel that the notes appear to be being made contemporaneously with the events under observation.  If that is the case then whilst it is understood why that has occurred, it is demonstrably unnecessary. 

23. The import of her Honour’s order and against the backdrop of the order made in December of 2013, is to provide a person who will supervise the time as ordered as between the father and the children in a way that leaves no room for error or concern that the person will not properly supervise or that their services will be dispensed with midway through any time that the children spend with the father, and that they will act promptly and appropriately should they observe any indication of aggressive or inappropriate behaviour. This is the matter complained of by the mother and is the substance of her Honour’s reasons which resulted in the orders of 17 June 2014.

24. Whilst it is an imprecise description, the involvement of the independent supervisor is there to supervise the time and not to make comment or to observe the interaction.  Indeed, the less involvement by the independent supervisor the better.  The more interaction between the father and the children the better.  It is not that the independent supervisor is required to or should be required to have a skill set that would enable that person to better facilitate the time.  That is not the purpose of the independent supervisor in this case.

25. And it may well be that note taking has created a heightened level of vigilance which is unnecessary in the sense of what should be the natural and ordinary interaction between the father and the children but albeit under the guise of a person who is able to discharge the obligation of supervision.  To some extent my reasons in this regard are unnecessary because there has been a concession now by both parties that they do not require the independent supervisor to take notes, and that may be, perhaps, to everyone’s advantage.

26. That, of course, does not stop whatever internal arrangements might exist as a part of some contract of employment or engagement between HD Care and the particular appointed supervisor, but that’s not a matter for the court.  That’s a matter for the obligation that their employment and/or contract requires of them.  The problem, therefore, is to determine whether the court should engage in a preference between Ms LH, Ms PB and Ms DS.  It is important, however, to note that time has resumed and that Ms LH has been involved. 

27. Notwithstanding the misgivings of the father it appears that Ms LH has assisted in the time that he has spent and he reports – it may of course be a matter of dispute - but at least the father’s position is that time has gone well.  Ms LH is at least now involved in the process, and it seems to me sensible that she should continue to be involved.  But if she is not available, understanding as the parties would that supervision is not easily arranged, and it is entirely and integrally dependent not just upon the parties and the children but, also the availability in terms of any particular supervisor taking into account their own personal lives and obligations, that there be a backup position and that should be Ms PB. 

1. The mother opposes it but for no good reason.  If I’m right that the position of these supervisors are there to supervise and not to record and observe interaction and become integrally involved in the process then, frankly, there is no distinction and no difference. To the extent that it provides what hopefully is certainty of outcome the mother puts forward Ms DS as a final default position.  And again, there should be no difficulty about that.  The common thread is that each of these three candidates had a relationship with HD Care and it is my view that this is the only relevant matter. 

2. And at this stage I do not consider the personal qualities of each of these candidates to be a highly relevant factor.  Good sense would dictate that if a process has started then it should continue. It may be that these reasons will promote a better understanding by the independent supervisor of the extent and the parameters of their involvement, namely, they are there to supervise but should not in any way be seen to interfere, intervene, facilitate or take part.  I propose to deal with the matter in that way. 

3. The second issue that is raised by the father is in respect of his make up or additional time.  This is a matter of some complexity, not just because the father says that as a result of the inability of the parties to reach an interim accord which would have seen the appointment by agreement of an independent supervisor and his time continuing seamlessly with the children, but also because the father is proposing to holiday in Country LB from 19 August 2014 to 3 September 2014.  It is not suggested that there is any criticism at this stage of the father for intending to take this trip other than the mother considers the trip unnecessary. 

4. The father wants to take it.  It is not beyond the experiences of these parties but also the community generally that people take holidays and have other commitments which interfere with the routine and regimen of orders made by this court.  The issue, therefore, is not so much that the father would be absent from South Australia but, rather, is his absence of such duration that there should be additional time provided by the court to maintain the relationship and to ensure that the likely future orders of the court which involved the preparation of the family consultant’s report will not be hindered or hamstrung.

5. The proposal of the father whilst suffering some change and amendment is effectively that he seeks three further mid-week periods and one additional Sunday.  The matter is delicately balanced, but I am satisfied that it would not be in the interests of the children for there to be any further mid-week time.  The difficulty about it is that whilst it is easy to suggest, and without looking further into it such an application appears to be benign, with children of this demeanour and with the heightened views of the parties it is likely to exacerbate the difficulties.

6. The frequency is an issue because that will add additional complexity to the arrangements in respect of the children.  The further alternative is that the father has one further Sunday with the children at some point.  Again, it’s a matter of balance.  It is, as far as the court is concerned, important that there be a meaningful relationship that is promoted but, also, that there be a proper basis for a true and reflective assessment of the nature and extent of the relationship that these children have with their father and with their mother. 

7. I am satisfied that there should be a further period of time between the children and their father on one Sunday at a time to be agreed.  What is proposed is that the father’s time with the children be suspended during the period that he is away.  Without knowing or understanding what the rotation or routine will be, there will need to be a further Sunday that the parties will have to agree between now and the commencement of the month of October 2014. 

8. The father further seeks that there be a change to the handover arrangements in respect of paragraph 5 of her Honour’s order of 17 June 2014.

9. Ideally it might advantage the children seeing a cooperative approach between their parents to facilitating the children transferring from one household to the next.  That is not the case that exists there.  It is further overlayed by an uncertain position between the parties in terms of proceedings that may well be ongoing in another court.  I do not consider that there should be any change to her Honour’s order as to matters relating to the collection of the children. 

10. Mr Ackmann QC referred me very properly to the family consultant’s report as described. 

11. Mr O’Shannessy urged me to have no regard to it on the basis that it was a matter dealt with, considered and implicit in her Honour’s order of 17 June 2014.  I suspect that Mr O’Shannessy’s submission is the correct one simply because the matters in the report are reflected in her Honour’s orders.  Having said that, I am assisted in terms of the course and pathway that I’ve determined to adopt by regard to some of the matters that as set out in the report and, in particular, paragraph 44. 

12. The issue that presented itself to her Honour on 17 June 2014 arising from the report is the assessment by the family consultant that the children informed that the supervisors were not always present and K expressed that he could not trust the supervisors to help protect him from his father’s anger. 

    From the information provided by the children, it is not clear how effective overall the supervisors have been.  However, [K] described generally more moderate behaviours by the father in the presence of the supervisors and it is clear that the children usually enjoyed the presence of the supervisors and prefer their presence.

13. From those extracts, the children appear, as far as the family consultant is concerned, to need the security of a supervisor in the sense of the behaviour and by particular and specific reference to the father’s anger.  To that extent, the report is of some application.

14. The mother in her response seeks that the communication be only between the mother and HD Care, but between the father and the supervisor directly.  I’ve already said something about that but the short summary is that the affidavit of Ms AB makes it clear that rightly or wrongly, there appears to be no room for movement.  It is regrettable, but that is the position that the parties now appear to be in. 

15. There is, however, a complication in terms of the method and manner by which the invoice for the services to be rendered by the independent supervisor are to be dealt with.  Unfortunately, notwithstanding that the mother seeks that the father communicate directly with the supervisor, the cost in respect of the attendance by the supervisor is not a matter between the father and the supervisor but rather, between the parties and HD Care. 

16. If it is the position that HD Care will only forward an invoice to the mother, then there is nothing that can be done about that and it will simply have to be a process whereby the mother forwards the invoice from HD Care to the father.  The difficulty, however, is that there have been some issues between the parties as to the extent of information that passes, and it may be that there will be ongoing difficulty.  I am uncertain whether it is the mother’s position that she do no more than on-forward the invoice, or whether in fact it’s her position that she intends to pay it and then seek reimbursement from the father. 

17. Notwithstanding what I have described as the limited compass and scope of the matters before the court today, it is demonstrable that other than in one area, namely my view that there should be one further Sunday provided to the father following his return, the orders that I propose to make today do not significantly disrupt or change the tenor of her Honour’s order of 17 June 2014.  Having said that, I am obliged to give proper considerations to what might be considered the legislative pathway as set out in Goode & Goode (2006) FLC 93-286. I do so understanding that I am obliged to give proper regard to the competing proposals of the parties, that I have to identify the issues, that I have to reach a consideration of any agreed or uncontested relevant facts, and that I must give proper regard to the relevant provisions of section 60CC of the Family Law Act 1975 (Cth) (“the Act”).

18. In that regard, whilst there are a range of additional considerations that impact tangentially upon the considerations that I am required to give the matter, this case, as so often appears before this court, really has about it the tension that exists in section 60CC(2)(a) and (b), namely the primary considerations and in particular, the benefits of the child of having a meaningful relationship with both parents, but the countervailing need to protect the child or children from physical, psychological or other abuse, neglect or family violence.

19. This case is a matter where those issues resonate long and loud in the sense of the mother’s position where she says there should be a proper relationship but that must be tempered by the need to protect the child and children, and the father’s position where he says the mother is attempting to interfere with that relationship and that he poses no risk in respect of the children. 

20. Her Honour’s order will continue, but hopefully to a better effect.

21. For those reasons, I make the following orders as appear at the commencement of these reasons.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 August 2014.

Associate: 

Date:  21 August 2014