HAMBLETON & ADEMA (No.3)

[2020] FCCA 3007

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMBLETON & ADEMA (No.3) [2020] FCCA 3007

Catchwords:
FAMILY LAW – Interim application for parenting arrangements for child aged 3 – assessment of the child’s best interests in the context of allegations that the mother poses a risk – mother currently facing criminal charges – mother previously engaged in illicit substance use – issues relating to mother’s psychiatric health – nature of interim hearing – whether supervised time should occur – best interests of the child paramount consideration – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Adema & Hambleton [2018] FCCA 3152

Adema & Hambleton (No 2) [2020] FCCA 2279

B & B (1993) FLC 92-357

Dieter & Dieter [2011] FamCAFC 82

W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892

Applicant: MS HAMBLETON

Respondent: MR ADEMA

File Number: ADC 4220 of 2018

Judgment of: Judge Brown

Hearing date: 3 November 2020

Date of Last Submission: 3 November 2020

Delivered at: Adelaide

Delivered on: 6 November 2020

REPRESENTATION

Counsel for the Applicant: Mr Wabnitz

Solicitors for the Applicant: Daniel John Lawyers

Counsel for the Respondent: Mr Bowler

Solicitors for the Respondent: Scales & Partners

Counsel for the Independent Children's Lawyer: Mr Charman

Solicitors for the Independent Children's Lawyer: Adelta Legal

ORDERS

1. The parties each enrol at the Suburb D Children’s Contact Centre to assess their suitability to take part in the supervised access program by no later than close of business on 13 November 2020.

2. The mother spend time with the child X born in 2017 on such occasion as the Director of the Suburb D Children’s Contact Centre or his/her nominee can accommodate the parties subject to the following:

   (a)There be no more than one session per fortnight which is not to exceed two (2) hours in duration;

   (b)Each period is to be subject to the supervision of the Director of the Centre or his/her nominee;

   (c)the visits are to be at the expense of the mother; and

   (d)after six visits the mother is to obtain a report from the Director of the Centre regarding the children’s reactions to the visits.

3. Further consideration of the matter is adjourned to 31 May 2021 at 9.30am for directions.

IT IS NOTED that publication of this judgment under the pseudonym Hambleton & Adema (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4220 of 2018

MS HAMBLETON

Applicant

And

MR ADEMA

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment relate to interim parenting arrangements for a young child.  The child is X born in 2017. 

2. The central issue in the case, at this stage, is what time X should spend with his mother, Ms Hambleton and how that time should be supervised. 

3. Ms Hambleton has a complicated psychiatric history, including a recent period of involuntary detention, pursuant to the provisions of the Mental Health Act in December 2019. 

4. She also has a history of illicit drug use, including amphetamines.  In addition, she is currently facing some serious criminal charges and is on bail. 

5. In all these circumstances, she concedes that any time between her and X needs to be supervised.  Her preference is that the supervision should be provided by a lay person associated with her. 

6. In this regard, she proposes that either her mother, Ms C, sister Ms E or her partner, Mr F provide the necessary supervision, presumably at either her or her mother’s home.  The time she has proposed, in this regard, would be each Saturday from 9.00am until 5.00pm.

7. As a result of an order made on 31 October 2018 and continued thereafter, X lives with his father, Mr Adema.  Mr Adema opposes X spending any time with his mother, other than in the professionally supervised confines of a Commonwealth funded Children’s Contact Centre (“CCC”).  He proposes the CCC at Suburb D. 

8. The chief drawback of the Suburb D Children’s Contact Centre is that, due to calls on its services, it will not be able to accommodate the family until February 2021, and when the service is available, it will only be able to offer supervision for a maximum amount of time of two hours per fortnight. 

9. On the other hand, lay family supervision can offer flexible and less formal arrangements for supervision, allowing mother and child to interact more regularly and more comfortably in the environment of a family home. 

10. However, such a form of supervision is neither independent in nature nor guided by the strict protocols applicable to CCCs, which are designed to ensure the safety of all users concerned, particularly children, and to maintain the transparency and independence of their operations.

11. These consideration are important because it is invariably the case that parents require the services of CCCs because they are deeply mistrustful of one another as a consequence of past differences between them.

Background

1. This is at least the third judgment, which I have delivered in these proceedings.  This is an indicator of both their complexity and the nature of the risk arising for X given its factual background. 

2. As a consequence, on 23 June 2020, an order was made that X be independently represented in these proceedings.  X’s representative is Ian Charman, an experienced Adelaide family lawyer.

3. Pursuant to the provisions of section 68LA of the Family Law Act 1975, Mr Charman is required to examine all the evidence available to him and then advocate the position, which he believes will best ensure the service of the interests of the child, whom he represents. 

4. At this stage, it is Mr Charman’s position that, notwithstanding the fact that Ms Hambleton was X’s primary provider of care, for the first half of his life, it would be imprudent of the court to consider allowing her to spend anything other than professionally supervised time, with X, notwithstanding the significant delays associated with the Suburb D CCC and indeed other such contact services in the Adelaide metropolitan area. 

5. The father was born in 1989; the mother was born in 1990.  They met in 2008 and began to live together in 2015.  They married in 2018 and separated, in difficult emotional circumstances, approximately two months later. 

6. The father began the first tranche of proceedings, regarding arrangements for X’s care, in October of 2018.  At that stage, it was his position that the mother was in the grip of a serious amphetamine addiction, which posed a significant risk to X’s safety, if he remained in the mother’s predominant care. 

7. On the other hand, at this stage, it was the mother’s position that, if X moved into his father’s care, it would be psychologically destabilising for him to be removed from the care of the parent, who had been his primary source of physical and emotional support, since birth.  It was her position, at the time, that her drug addiction was in remission due to successful therapeutic intervention. 

8. Ultimately, on 2 November 2018, I determined that X should live with his father, pending production of a detailed family report, but spend time with his mother, on two occasions per week, during the day, subject to the supervision of the maternal grandmother, Ms C.[1]

   [1]  See Adema & Hambleton [2018] FCCA 3152

9. In this judgment, at some length, I set out the legal principles to be applied to the determination of interim or provisional arrangements for the care of a child.  In particular, how the court went about the assessment of risk, in the context of a hearing, which was truncated in nature and did not allow the court to reach concluded findings of fact, given the limited extent of the evidence before it.

10. Essentially, the court is required to assess the nature of the risk arising for any child, on the material currently before it, and cannot defer that assessment until a later stage on account of deficiencies in the evidence then available. 

11. Rather, the court must assess the nature and quality of the risk arising and put in place a response, which it considers to be proportionate to the degree of risk so assessed.  At the interim stage, when evidence is often limited and incapable of being tested through cross-examination, this is often an extremely difficult task.  However, it cannot be deferred.

12. Obviously, in carrying out such an assessment, the best interests of the child concerned remain paramount.  The court must look at the evidence and consider what is the likelihood of some deleterious outcome occurring, with or without precautions.

13. In this case, it is the position of the father and the independent children’s lawyer that issues relating to Ms Hambleton’s psychiatric health; her drug use; and the nature of her relationship with each of the proposed supervisors; is so uncertain that it would represent an unacceptable risk if X spends time with his mother, subject to their supervision. 

14. On the other hand, it is the mother’s position that she has provided evidence, in the form of a psychiatric report, prepared by her treating psychiatrist, Dr G, which indicates that her condition is now properly diagnosed and appropriately treated. 

15. As such, she endorses Dr G’s opinion that she is psychiatrically well enough to start spending time with X, subject to lay supervision and her parenting capacity is otherwise within acceptable and normal parameters.  She hopes to resolve her criminal charges in the reasonably foreseeable future.

Background to the current application

1. On 13 February 2019, Ms H prepared a family assessment report for the court.  She described X, at the time, as a happy, well-adjusted and endearing young boy.  She was equally complimentary in respect of X’s parents, describing them as emotionally mature adults, who were motivated to work together to provide X with a safe and stable environment.

2. Ms H however noted that Ms Hambleton’s recovery from drug addiction was a relatively recent one and, as such, there remained a significant risk of relapse on her part.  However, Ms H expressed some confidence so far as the future was concerned.

3. Against this optimistic background, the parties were able to agree on final orders for X’s care, which saw him living in a shared care regime, provided that Ms Hambleton remained free from illicit drugs.  If evidence was available that the mother had resumed use, the orders envisaged Mr Adema resuming care of X.

4. From the father’s perspective, this regime broke down in the latter part of 2019, due to a cascading series of crises in the mother’s life.  It is common ground that Ms Hambleton has not spent any direct time with X since 29 December 2019.  What occurred around about this time is complex and contradictory.

5. The mother re-commenced proceedings on 10 February 2020 seeking a recovery order in respect of X.  She prepared her own application.  She acknowledged that she had recently been psychiatrically unwell.

6. In addition, Ms Hambleton confirmed that she had provided a urine sample, which had been positive for both amphetamine and methamphetamine.  However, she deposed that this was as a consequence of being prescribed an amphetamine-based drug, by Dr G, in respect of his diagnosis that she was suffering from ADHD.

7. The mother also made some imprecise allegations that Mr Adema had subjected X to some form of sexual misconduct.  Ostensibly, it was her case that the father’s unreasonable actions in withholding X from her care, on the basis of an incorrect assertion that she had relapsed in her drug use, had significantly undermined her mental health. 

8. The father responded to the mother’s application on 18 March 2020.  He sought the suspension of the earlier consent order regarding X’s care made in the previous August.  It is apparent that he had resumed X’s sole care on the basis of the earlier order.

9. In lieu thereof, he sought orders that X live with him; the mother be restrained from attending at his home or any childcare centre attended by X; and he be conferred with sole parental responsibility for the child.  At this early stage, he had no concrete proposals for X to interact with his mother.

10. In his supporting affidavit, the father deposed as follows:

    ·In late November of 2019, the mother had taken X to the J Hospital by ambulance.  Police had been concerned about the mother’s state of health at the time;

    ·The mother had been asked, by him, in accordance with the August 2019 order, to undergo a urine drug screen test, which was positive for the presence of amphetamine and methamphetamine;

    ·On 30 December 2019, the mother had been detained under the Mental Health Act, after she had jumped into a car and refused to get out;

    ·On 1 January 2020, the mother underwent a further drug screen test, which again was positive for methamphetamine;

    ·The mother’s sister and mother indicated they were not prepared to supervise any time the mother had with X;

    ·Ms E (the mother’s sister) sent a text message to the father indicating that she did not feel she could provide adequate protection for X while Ms Hambleton is struggling with addiction and the associated behaviours;

    ·On 7 February 2020, the mother attended at X’s childcare and attempted to remove him from there.  As a consequence police became involved;

    ·On 8 February 2020, the father alleges the mother attempted to break in and set fire to a unit in Suburb K, which he owned but which was rented out;

    ·On 9 February 2020, the mother attended at the paternal grandparents’ home in Suburb L, where she smashed windows and damaged other items of property.  She accused the father and his parents of being paedophiles;

    ·As a consequence of these incidents, Ms Hambleton has been charged with aggravated assault; being unlawfully on premises; arson; property damage; engage police in high speed chase; drive disqualified; and breach of bail;

    ·The father and his parents subsequently obtained intervention orders against the mother.

11. In these circumstances, on 24 March 2020, I ordered that X live with the father and by necessary implication, discharged the earlier order. The parties were also referred to a family dispute resolution conference, pursuant to the provisions of section 11F of the Family Law Act.

12. The family dispute conference was convened by Ms M.  She reported that Mr Adema had indicated that he and Ms Hambleton had co-parented well up until November 2019, when the mother had raised allegations concerning X’s sexualised behaviour, which had led her to take the child to hospital by ambulance. 

13. Ms M further noted that X had not spent time with his mother since December 2019 and raised concerns regarding disruption to his attachment relationship with her. 

14. Overall, Ms M recommended as follows:

    ·More information be obtained about the mother’s drug taking/mental illness;

    ·An independent children’s lawyer be appointed;

    ·Reports be obtained from Dr G; SAPOL and the hospitals recently attended by the mother;

    ·Given that X had had no contact with his mother, consideration be given to X at least seeing and talking to his mother via some form of electronic media, such as skype.

15. This was the background to the appointment of Mr Charman.  In addition, the solicitors acting for Mr Adema issued a number of subpoenae to obtain information from both the police and the various hospitals attended by Ms Hambleton, as recommended by Ms M. 

16. As a consequence of the criminal charges against her, Ms Hambleton was granted bail on condition that she reside with her mother, Ms C.  There was an incident between the two women on Easter Saturday, which again involved the police.  The mother asserts that Ms C disapproved of the fact that she had a male visitor to her home.

17. As a consequence of information subpoenaed by him from SAPOL, the father has a different view of the incident.  On 16 June 2020, the father’s solicitor Frederick Turner filed an affidavit, in which he summarised the documents viewed by him, which had been produced by SAPOL.  These documents can be summarised as follows:

    ·Police had been called to the J Hospital on 28 November 2019, where the mother had made a complaint regarding the sexual abuse of X.  She was described as being paranoid and disorientated;

    ·On 30 December 2019, the mother got into the back of a stranger’s care containing two eleven year old children.  She refused to leave and police were called;

    ·This resulted in her being taken to the B Hospital.  She was found to have two dexy tablets, which were apparently subject to prescription;

    ·On 9 February 2020, the mother was involved in a high speed chase involving police;

    ·On 19 February 2020, the mother had jemmied open a letter box of a property at Suburb K and entered the property concerned;

    ·On 11 April 2020, Ms C had contacted police to say that she no longer wished for the mother to reside in her house.  Police attended;

    ·At the time, Ms C said she did not want her daughter charged, but stated Ms Hambleton was raising her voice to her and making her feel unsafe;

    ·As a consequence, the mother was detained and placed in custody.

18. The mother was subsequently re-bailed but not on condition she reside with her mother.  However, on 19 June 2020, Ms C filed a short affidavit in which she indicated her willingness to again act as a supervisor of any time ordered to occur between X and his mother.

19. Both the father and Mr Charman are critical that this affidavit does not make any reference to the earlier incident between the mother and her mother, which resulted in the former’s bail being revoked.  In particular, Ms C has elected not to comment on whether she does or does not harbour some fear concerning her daughter’s behaviour or the implication of what must be regarded as a protracted period of extreme behaviour on her daughter’s part.

20. The mother’s application to spend time with X returned to court on 23 June 2020, on which occasion I delivered an ex tempore judgment declining to make any order for X to spend time with his mother.  Ultimately the reasons were transcribed and released to each of the parties.[2]

    [2] See Adema & Hambleton (No 2) [2020] FCCA 2279

The current proceedings

1. Ms Hambleton has changed her solicitor and wishes to re-agitate her application to spend time with X.  She has filed a further affidavit, in early October, in which she has outlined her current situation, which can be summarised as follows:

   ·She is currently being treated by a general medical practitioner and Dr G;

   ·She has been prescribed Ritalin for ADHD and anti-depressant medication;

   ·She is engaging in counselling, particularly a safe relationship program;

   ·She is attending drug and alcohol counselling and has been abstinent from illicit drugs since October 2018;

   ·In November of 2019, she had taken X to hospital because he had started to display sexualised behaviour, was not eating and was finding it difficult to sleep;

   ·The father had accused her of manufacturing allegations of sexual abuse, which had led to him requesting a drug screen test, to which she had complied;

   ·She had attempted to discuss issues with the father to no avail;

   ·She expects some of her criminal charges to be withdrawn;

   ·Her positive drug test in early December 2019 was due to her prescribed medication and she doubts its integrity overall;

   ·As part of her regular bail she continues to be subject to random drug screen testing, which have all been negative;

   ·She is currently engaged in part-time work and a course of tertiary study;

   ·She has secure accommodation which she shares with her partner.

1. In summary, the effect of this evidence is that Ms Hambleton has been the victim of circumstances in respect of what happened to her in the latter part of 2019 and the early part of this year.  Essentially, she asserts she responded in a legitimate fashion to concerning aspects of X’s behaviour and, in good faith, consented to a drug screen test.

2. However, presumably as a consequence of legal advice, she has not provided any evidence in respect of the circumstances leading to her being charged with the serious criminal offences relating to Mr Adema’s parents and his property.

3. More recently again, on 2 November 2020, her solicitor has filed an affidavit to which is attached a report from her treating psychiatrist, Dr G.  Dr G is clearly a very experienced adult psychiatrist.  Dr G has been treating Ms Hambleton since April of 2019.

4. Dr G’s diagnosis of Ms Hambleton is one of Adult ADHD combined with a history of methamphetamine dependence currently in remission.  Dr G was aware of the various circumstances which had brought her to the notice of police.  In this context, he opined as follows:

   “The dissociative rage episodes that she exhibited may relate to ADHD and this behaviour occurs in a higher frequency in persons with Autism and ADHD. More likely it is part of PTSD which may be linked to her own experiences of domestic violence and social isolation. This behaviour may be enhanced by some underlying organic brain changes from her previous amphetamine abuse, this enhancement of her rage should diminish if she remains abstinent from methamphetamine. Although she has based her conduct on her paranoid ideation particularly in relation to her perception of her ex-husband sexual aberrations, they are not of a frequency or delusional level to justify the use of antipsychotics.

   Her present current mental health is stable, and she appears to be in a stable relationship and has a positive outlook to the future, with a view to continuing her academic studies.”[3]

   [3]  See Annexure -2 to the affidavit of Daniel John Wabnitz filed 2 November 2020

5. Dr G has prescribed Ms Hambleton methylphenidate for her ADHD and fluoxetine, which he describes as being not only an effective antidepressant but also good for reducing hostility and dissociative symptoms associated with PTSD.  He further opines that the treatment of ADHD with stimulants leads to a reduction in substance abuse.

6. In answer to the question as to what is the likely impact of Ms Hambleton’s mental health issues on her capacity to parent X safely, Dr G wrote as follows:

   “Ms Hambleton had custody of her son until October 2018, the first 18 months of his life, her child-rearing skills as a practical mother and her bonding to X appear fine, the situation deteriorates after she perceives her husband's sexual aberration as a threat to X safety, and peak with the dissociative destructive episodes particularly his parent's home. She has no previous record of violence and does not engage in any self-harming behaviour and certainly there is no suggestion that she is either neglectful or aggressive to X.

   Over the last six months she has been very proactive in trying to improve her coping capacity when stressed and clearly acknowledges the negative impact that methamphetamine has on her and her need to be abstinent. In the application dated 5 August 2020 under the supervision of her maternal grandmother or her maternal aunt, in my opinion, that X would be safe and her parenting appropriate. Although her practical parenting would probably be appropriate without supervision, I believe her ability to control the conduct needs to be established further before I would endorse such an arrangement. My opinion at present is that she is capable of parenting X but I would suggest initially under the supervision of a responsible adult.”

7. By necessary implication, Dr G opines that the various incidents, which led Ms Hambleton to be involuntarily detained and then to be charged with a series of serious criminal offences, are the result of dissociative rage episodes, which are currently being effectively managed through medication and thus are unlikely to recur and so pose no threat to X.

Discussion

1. As with very many cases arising at the interim stage, the case falls to be determined by reference to what have been characterised as the twin pillars of how the court is to determine a child’s best interests, namely, the two primary considerations, set out in section 60CC(2)(a) & (b) of the Family Law Act 1975, namely:

   “(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

2. However, pursuant to the provisions of section 60CC(2A), the court is required to give greater weight, in its determination of a child’s best interests, to issues arising under the primary consideration relating to the protection of children from abuse, neglect or family violence.

3. The recent changes to the Family Law Act are significant ones.  The key amendments are designed to “prioritise the safety of children in parenting matters”.[5]

   [5]  See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

4. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

5. It is clear from Ms H’s report that X and his mother share a close and comfortable relationship with one another.  The nature of this relationship, recognised by Mr Adema, formed the basis of the shared care regime inaugurated by the consent order of August 2019.

6. This significant relationship, for X, has been interrupted for a lengthy period of time – approaching twelve months, as of December.  This interruption, of itself, in my view, behoves the court to adopt a cautious approach in respect of how X is re-introduced to his mother, particularly given the pre-eminence to be accorded to protective concerns.

7. This must be particularly so given the reason for the interruption.  On the mother’s own case, she was subject to several episodes of dissociative rage, which led her to engage in a series of erratic and bizarre behaviours, leading to her being charged with a number of serious criminal offences.

8. What was the nature of X’s exposure to these events is unclear.  He was present at the J Hospital when independent sources described the mother’s behaviour as paranoid.  In addition, it is implicit in Ms C’s actions, in not supporting the continuing bailing of the mother to her home, that she personally felt unable to adequately control her daughter’s behaviour and was frightened by her.

9. This was also the position of the mother’s sister, Ms E, as evidenced by the text message sent by her saying that she did not feel she was able to adequately protect X in the light of the behaviour displayed by the mother, which she (Ms E) had observed.

10. In all these circumstances, I am greatly concerned by the formulaic nature of Ms C’s affidavit, in which she offers herself as a potential supervisor.  Ms E and Mr F have not offered even these affidavits.  Accordingly, I have no way of gauging how they would react if the mother is subject to a further episode of dissociative behaviour whilst X is with her.

11. I acknowledge that the mother is not to be penalised on account of being mentally unwell.  In addition, I note that the evidence is not as yet established as to whether the cause of her behaviour of late last year and early this year was the use of illicit drug use.

12. The essential task for the court, at this stage, is to assess the potential risk, for X, of being exposed to a further episode of his mother’s extreme behaviour, which has been marked by unpredictability and some violence. 

13. In making that assessment, the court is required to assess the degree of probability that a harmful event will occur in future and what will be its level of severity, to any individual, particularly any child, who will be potentially affected by it.[6]

    [6]  See Dieter & Dieter [2011] FamCAFC 82

14. It is Dr G’s view that, given Ms Hambleton is now medicated and amenable to treatment, she is unlikely to relapse in the violent and unpredictable way manifested by her earlier this year.  However, he provides the caveat that before unsupervised time is considered, a further period elapse to ensure that her ability to control her conduct is firmly established.

15. Accordingly, to some extent, Dr G recognises that some degree of risk remains, although he opines that an appropriate response to that risk would be supervision by a responsible adult.  Dr G also considers that there is at least a possibility that Ms Hambleton has suffered a degree of organic brain damage, attributable to her previous methamphetamine use.  As such, if she resumes illicit drug use, this may render her particularly prone to suffering further episodes of extreme behaviour.

16. In my view, this must be regarded as a significant component of the risk.  In this context, although Ms Hambleton, to her credit, has commenced the OARS program, the evidence currently available to me indicates that she attended a group program on three occasions and, as at 2 September, was anticipated to attend one further 1:1 counselling session.  Accordingly, in my view, the evidence regarding her long term prognosis of remaining drug free is uncertain.

17. Mr Adema has become X’s primary provider of care as a consequence of the crisis in the mother’s life.  As such, he is entitled, to some degree, to have confidence in the capacity of any potential supervisor, particularly given the evidence indicates that his parents were subject to a violent incident involving the mother. [7]

    [7] See B & B (1993) FLC 92-357 at 79,780

18. For obvious reasons, he is likely to be highly protective of X, who at 3 years and nine months of age, remains reliant on adults around him to ensure that his safety is maintained and his physical and emotional needs met.  These factors are likely to exacerbate the father’s concerns rather than diminish them.

19. Given the earlier statements of both Ms E and Ms C and the absence of any material from Mr F, he does not have any confidence that they would be able to adequately protect X, particularly how they would cope with any violent episode emanating from the mother. 

20. Notwithstanding the opinion of Dr G, I share those concerns, given the multifaceted aspects of the mother’s earlier conduct, which appears to have been protracted in nature and not characterised by an isolated event.  In addition, if X was exposed to such an incident, it has the potential to have extremely serious consequences for X.

21. The alternative to the lay supervision proposed by the mother, which will have the potential to be flexible and extensive in nature and more relaxed, is professionally supervised time at a CCC, which necessarily will be more formal and temporarily constrained.  These are the competing considerations, which arise in the current matter. In W and W[8] the Full Court said as follows:

    “We appreciate that the decisions in these cases have the potential for long term consequences for a child, and they require very careful consideration.  We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement.  The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”

    [8]  W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892 at [115]

22. Staff at CCCs are trained to cope with volatile situations and respond to them in a child focussed way.  Their premises are set up in order to ensure a maximum degree of security.  With all due respect to the proposed supervisors, they do not have such training and, as is evident from the prior behaviour of both Ms C and Ms E, each has expressed some reservations about how to deal with previous episodes of extreme behaviour demonstrated by the mother.

23. The overall objectives of these services are outlined in Children’s Contact Services: Guiding Principle Framework for Good Practice, published by the Australian Government Attorney-Generals’ Department, as follows:

    “CCSs occupy a unique and important position within Australia’s family law system with their core business focusing on the needs of separating or separated families.

    CCSs enable children of separated parents to have safe contact with the parent they do not live with, in circumstances where parents are unable to manage their own contact arrangements.  Where separated parents are not able to meet without conflict, CCSs provide a safe, neutral venue for the transfer of children between separated parents.  Where there is a perceived or actual risk to the child, they provide supervised contact between a child and their parent or other family member.  Parents may be ordered to attend a CCS by the family court to facilitate changeover or have supervised visits with their children.

    The key goal of CCSs is to assist separated families to move, where possible and it is considered safe to do so, to self-management of contact arrangements, both in terms of changeover and unsupervised contact.  CCSs ensure that the children’s best interests are kept central to the contact process.  Services should only accept cases after careful assessment and where they consider that their facilities and resources allow them to deliver services that are safe and appropriate for all parties.

    The overall objective for CCSs is to provide children with the opportunity of re-establishing or maintaining a meaningful relationship with both parents, and other significant persons in their lives, when considered safe to do so.”

24. The guiding ethos of CCCs is that parents should move to self- management of arrangements for their children’s care.  As such, it is not likely to be viable, in the longer term, for Ms Hambleton to maintain her relationship, with X, solely through a process of professionally supervised time at a children’s contact centre.

25. In W & W,[9] the Full Court spoke of the tension arising between the protection offered to a child by supervised contact with the potential detriments occasioned by the artificiality and limitations necessarily arising from such supervision, which can impact on the emotional wellbeing of the child concerned by a curtailment of his or her parental relationship. 

    [9]  W & W (supra)

26. Supervision has limitations.  It may not provide sufficient time for the fostering of an appropriate parental relationship.  It may prevent the parents concerned managing their own parenting relationship with one another.  As such, it is, at best, a temporary or stop-gap measure.

27. I acknowledge all these difficulties exist in the current matter, the chief ones being the delay the parties will experience in being accepted into the Suburb D CCC and the extremely limited amount of time which will be available. 

28. In addition, such supervision can only be a temporary measure.  As time unfolds, it will not provide an adequate mechanism for X to maintain what must be regarded as one of the central relationships in his life – that which he shares with his mother.  However, in my view, the prospective nature of the risk arising in the case and the fact that Ms Hambleton is still engaged on the path to recovery justify professional supervision at this stage.

29. In my assessment, the parties need a secure and certain mechanism to provide a bridge over which they can travel before consideration is given to a more organic and natural form of interaction occurring between X and his mother.  The unusual but extreme behaviour displayed by Ms Hambleton, in the short to medium term dictates that a cautious approach should be adopted, notwithstanding the significant delay incumbent in such an approach.

30. I commiserate with Ms Hambleton at the distress the delay will inevitably cause her.  For what it is worth, in my view, it would be a comparatively cost effective intervention, for the Commonwealth Government, but extremely beneficial in terms of the assistance to be derived by separated families, in this country, if consideration was given to funding more places at CCCs within Australia, of which it appears to me there is a pressing need.

31. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 6 November 2020

[4]  Ibid