IDANOV & DUNSTABLE
[2019] FamCA 77
•22 February 2019
FAMILY COURT OF AUSTRALIA
| IDANOV & DUNSTABLE | [2019] FamCA 77 |
| FAMILY LAW – CHILDREN – PARENTING – review of Senior Registrar’s decision – where the Senior Registrar declined to enter parenting orders that removed a requirement that the father’s time with three children to be only under the supervision of a paid supervisor – where the court was satisfied that the proposed family member was a suitable person to undertake the task in respect of weekends but not necessarily week days – where the mother opposes any alteration to include family members – where the mother’s evidence does not support the proposals she put – Orders made. FAMILY LAW – COSTS – where the father sought the costs of a contravention application concluded on 14 June 2018 – where there was not sufficient evidence to enable the court to make findings in June. Where the court found that the financial circumstances of the mother were such that they did not warrant the making of an order against her. |
| Family Law Act 1975 (Cth) |
| Idanov & Dunstable [2016] FamCA 544 N & S and The Separate Representative (1996) FLC 92-655 |
| APPLICANT: | Mr Idanov |
| RESPONDENT: | Ms Dunstable |
| FILE NUMBER: | MLC | 7400 | of | 2014 |
| DATE DELIVERED: | 22 February 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 15 February 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Potter |
| THE RESPONDENT: | In person |
Orders
That upon Ms S executing the undertaking referred to in the reasons published this day, the father’s time on weekends with the children B, C and D is varied such that the supervision shall be undertaken by the husband’s sister referred to in the undertaking.
To the extent that it is necessary to say so, paragraph (8) of the orders of 7 July 2016 is varied accordingly.
That the father’s application for costs arising out of the contravention application concluded on 14 June 2018 is dismissed.
That paragraph (1) of the orders made on 3 December 2018 (by the Senior Registrar) is discharged.
That the application in a case filed by the father on 27 December 2018 is otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Idanov & Dunstable has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7400 of 2014
| Mr Idanov |
Applicant
And
| Ms Dunstable |
Respondent
REASONS FOR JUDGMENT
These are limited parenting proceedings between Mr Idanov (“the father”) and Ms Dunstable (“the mother”). They relate to the three children of the parties’ relationship. B is 11, C is nine and a half and D is seven and a half.
The specific proceedings were limited because of the way that they were conducted. First, the proceedings were transferred to me by the Senior Registrar ostensibly about a costs dispute and to which I return below.
The second limitation was that in the Senior Registrar’s proceedings, the father (although his application did not say so) sought, through his affidavit, a variation of extant parenting orders. The Senior Registrar did not accede to the father’s request but made different orders after a contested hearing which the father then reviewed by application in a case. Thus, before me, the father’s proposed orders as set out in his affidavit (as distinct from his application in a case) required a de novo hearing.
The third point is that notwithstanding the six week’s duration after the father filed his application for the review, the mother did nothing about it. Before the hearing began, she requested the opportunity to speak to the duty solicitor and she was given that opportunity. When the hearing began in earnest, she made an observation that one of the reasons she had not filed material was that she thought this would be a directions hearing. I do not accept there was any foundation for her view as she is an experienced litigant and presumably had access to community legal advice (on the assumption that she could not afford to pay her own legal representation) but she had not taken any such opportunity. Hence, she sought the advice of the duty solicitor. She made no application to adjourn the proceedings.
The fourth point is that the review arose out of a contested hearing and it appears at least from the file of the court (and observations made by the mother during the hearing) she had a transcript of the Senior Registrar’s hearing so she at least knew what the issues were.
The fifth point is that the mother began by saying she did not want to cross-examine the father. Having regard to the nature of the proceedings, I decided that the court should hear from both he and his sister (both of them having affidavits filed before the Senior Registrar and there being no further evidence) but when I asked a series of questions, the mother then chose to express concerns about the father’s evidence so I had him recalled so that she could cross-examine him. That exercise did not elicit much more than that these parents strongly disagree about most facts.
The sixth point is that no report from any child supervisor (and in this case there has been a number) was provided as the mother had not obtained one. However, the mother said from the bar table that the supervisor had complained to her about the father’s behaviour with the children. Notwithstanding the supervisor had held herself out as a professional supervising service, she had been required to enter into an undertaking as to her supervision responsibilities and the sorts of descriptions to which I turn and which were made by the mother did not give rise to any termination of the father’s time with the children. In my view, that order is not only appropriate but should be considered in all cases even with experienced professionals to ensure they understand what the purpose of the protection is (or the problem to be prevented) and that they will be answerable to the court making the order. That is, the fact that someone even with qualifications starts up a “service” is not sufficient.
The paucity of evidence in this case was concerning but I consider I got to the bottom of the problem. I have satisfied myself that no further evidence (if there is any) would alter my determination that the orders I now make are in the best interests of the children.
It is important to observe that in her submissions to the court, the mother indicated that she had not brought applications to vary the orders because that was pointless as her view was that the court would not make orders discharging the father’s time. She pointed to the fact that notwithstanding the complaints of the children about their father and it would appear, some oral statements made by the existing supervisor, the mother has not taken steps to vary the orders. Thus, notwithstanding the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) there is only so much the court can do in assessing best interests principles based upon the evidence with which it is presented. It also goes without saying that in determining those issues, the court must determine the matter on the balance of probabilities.
To the extent that the mother’s complaint is that no-one within the court is interested or listening, I reject it emphatically. To the extent that she considers the voice of the children is being ignored, I also emphatically reject that as well.
To understand the complex dynamic arising from this case, it is necessary to point to two significant hearings. The first was before Thornton J in 2016 which was a final parenting dispute in which orders were made. The second was in relation to a contravention application heard by me in June 2018 at which I found the mother had contravened the 2016 orders without reasonable excuse.
The final hearing in 2016
A final parenting hearing took place before Thornton J over six days in May 2016 at which both parents were represented by counsel and the court had the benefit of an Independent Children’s Lawyer. The judgment is extensive. It is clear from reading the judgment (Idanov & Dunstable [2016] FamCA 544) that the mother made allegations of sexual abuse of the three children by the father. Although Thornton J did not make findings that the events had occurred as alleged, her Honour ultimately found that there was an unacceptable risk of harm to the children. Her Honour noted that the nature of the allegations of each child was serious and that the children had given graphic detail of what they said their father had done to them. Her Honour determined that the risk was unacceptable “having regard to the seriousness of the allegations” as well as the “other matters” that her Honour found in answering the questions posed by Fogarty J in N & S and The Separate Representative (1996) FLC 92-655.
At [45] of the reasoning of Thornton J, her Honour said as follows:
In W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 (“W & W”), the Full Court stated at [111] that the questions posed by Fogarty J in N & S and the Separate Representative (1996) FLC 92-655 (“N & S”) provide a framework which may assist a trial Judge to assess future risks to a child. Those questions are:[1]
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom has the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
[1] N & S and the Separate Representative (1996) FLC 92-655 at 82,714, endorsed in W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at 79,909.
To the extent that Thornton J referred to the questions raised N and S, under the heading of “Findings” her Honour said that she accepted that the children had told the family consultant the details of their complaints about what had happened to them. Her Honour accepted the evidence of the mother that the complaint had been made to her at the time the parties separated in 2012. There was therefore a rejection of the father’s assertion that the mother had fabricated or coached C.
In those contexts, her Honour went on to find that C made no “disclosures” about her father when interviewed by the police. It will therefore be clear that her Honour had accepted that the evidence was what it was from the statements of the children but went on to find that the children were not in fear of the father and wanted to spend time with him and that the interaction between the father and the children was positive. Those findings at [347] are important because whilst there have been no further allegations of sexual impropriety, the mother’s case now seems to be that the father’s aggression and abuse of the children is continuing including in front of whoever is supervising. It is that allegation that is concerning because the father wants to use his sister as a supervisor in part to replace the paid supervisor because the current cost is $800 per week. It is the mother’s case that what she and the supervisor had witnessed is inconsistent with [347] of the findings of Thornton J yet no application has been made to alter the orders to which I shall turn in a moment.
Notwithstanding the cynicism of the mother about the attitude of the court, I gave the mother ample opportunity in June 2018 after having found her to have contravened the orders, to bring an application but she has not done so.
Returning to the judgment of Thornton J, her Honour was critical of the mother. She said at [357] the mother had denigrated the father during arguments on a total of five occasions that the father had recorded and had apparently been played in evidence. That denigration occurred in the presence of the children and the mother had conceded that she was out of control and “extremely angry”. That anger included, according to Thornton J, a threat by the mother that she would get a “hit man” to deal with the father. Her Honour also found that the mother had regularly had discussions with the children about safety around the words “touching rules”.
It is not entirely clear to me where Thornton J answered the questions raised in N & S although certain inferences might be drawn from the reasoning but in any event, her Honour ultimately found that there was an unacceptable risk of harm to the children (albeit it is not clear to me how the conflict between the children having a benefit of a meaningful relationship with their father (as a mandatory consideration in s 60CC(2) of the Act) and the need for protection of the children from various forms of harm (s 60CC(2)(b)) fits here). Undoubtedly, as the legislature requires, the court must give much greater weight to the latter provision rather than the former.
Thornton J made orders relevantly, that unless otherwise agreed, the children were to spend time with their father on three hours during a weekday and five hours on a weekend and in both cases, every week.
The controversial order which brings the matter back before the court now is that all of that time was to be supervised by one of these professional contact service providers.
The parties do not agree on why Thornton J limited her order to only that service rather than to extended family members. It was submitted by the mother that her Honour had rejected that family option but as counsel for the father pointed out, there was no such proposal put and it seems, her Honour crafted her orders in the context of the respective parties’ proposals. At [7], her Honour noted that the mother proposed that the father spend supervised time with the children for eight hours per week and that it all be supervised by the professional supervisor. The father’s position was that his time be unsupervised which position seems to have been adopted by the Independent Children’s Lawyer. It was rejected by her Honour.
Subsequent to that hearing, the father appealed and was unsuccessful with his appeal being dismissed on 19 July 2017 (see [2017] FamCAFC 134). The gravamen of the outcome of the appeal was that her Honour’s discretion had not miscarried in relation to the weight she had given to the evidence of the children’s allegations. That is a pertinent point here because again, the predominant allegations related to sexual impropriety but the focus now seems to be on the father’s inability to control his temper or just his aggressive nature.
The contravention application
The contravention application came before me on 14 June 2018. It is not necessary for me to repeat the background but reference should be made to my reasons of 8 May 2018 [2018] FamCA 1134 and 14 June 2018 [2018] FamCA 440.
In respect of the proceedings before the court in June brought by the father, I found the mother had contravened the orders and required her to enter into a bond to comply with all conditions of the court order and she did so.
By reference to my June 2018 reasons, it will be seen that the mother had “notes” from people who were said to be the contact supervisors. At [10] of my reasoning, it can be seen that I grappled with the mother’s use of these “notes” not to mention the various “reports” from these supervisors. I raise those matters having regard to the mother’s position that she did not understand the nature of the present hearing and the need for appropriate evidence not to mention my reference in the first of the two judgments to which I have just referred relating to her non-appearance before the court.
One significant order made on 14 June 2018 was that the father’s costs of the contravention proceeding were reserved to the Senior Registrar’s list of cases but if the Senior Registrar could not deal with it, the matter was to come back to me. That arose because the father’s counsel was unable to produce to me any details as to the nature and extent of the costs and there was a paucity of evidence in relation to his financial circumstances. When the matter came before the Senior Registrar, the situation had not changed and accordingly, the Senior Registrar transferred the proceeding back to me ostensibly at that time, on the basis that I was to then determine the costs.
At the hearing on 15 February 2018, counsel for the father was in no better position than he had been in June 2018.
The costs application
The father’s application for costs was based on the fact that the mother had been found to have contravened the parenting orders without reasonable excuse. The mother pointed to the fact that the father paid no child support, was substantially in arrears of a child support assessment, had substantial property and she was totally supporting the children. Unlike the father who said the mother had property, she maintained she had none.
This financial issue became a bit more intriguing when reference was made to the mother’s only application for financial relief before the court. The application which she described as a property settlement application did not seek an alteration of property interests. I have suggested to the mother that she get legal advice to rectify that position. Notwithstanding this case appears to have been in the court’s list for over two years, nothing seems to have happened in respect of the property proceedings and as I pointed out to the mother at the time, the matter remains in a vacuum until such time as all interlocutory steps are completed.
To compound matters however, it appears that for a considerable period subsequent to the parties’ separation, the mother has been a bankrupt. She said that she had “been technically” discharged from that bankruptcy although I do not know what that means. She said that the Official Receiver was prepared to see her pursue property settlement so that she could pay out whatever debts gave rise to her bankruptcy in the first place. I do not understand that to be the law. Needless to say, the father’s position as articulated by his counsel by reference to a financial statement he has filed shows that whilst he may have property of some millions of dollars, the liabilities encumbering those properties exceed the values of the property.
In respect of the costs issue, s 117 of the Act provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify a departure from that principle. It is noticeable that under the Act relating to the enforcement of parenting orders, an order for costs is a specific power given to the court in the event that a parent is found to have breached the order.
In my view, having regard to the financial circumstances of the parties, notwithstanding what I found to be a flagrant breach of the orders by the mother, it is not a case where I should make an order for costs having regard to the financial circumstances of the parties. I had rejected the mother’s arguments about the protection of the children having regard to the background to which I have already referred in these reasons but in any event, to impose an order for costs upon her may have two possible detrimental effects. The first is that there is a real potential (in her words) to go bankrupt again and if that was to occur, any potential property proceedings would be stymied. The second factor which is in my view more important, is the fact that the mother is solely providing for the financial support of the children and to have her pay costs would impact on the children. Whilst counsel for the father indicated that any costs order could be stayed until the property proceedings, his client’s own case is that there is no payment to be made having regard to the financial circumstances that his client faces. In all those circumstances, the impact upon the children would be inappropriate. The father’s argument about the child support was that he is paying $800 per week for the supervision of his time with the children and it would seem that somehow or other the Child Support Agency has not taken steps to enforce the assessment. No doubt that will become an issue.
Accordingly, the father’s application for an order for costs is declined.
The present application
The application to review the registrar’s order gives rise to a de novo hearing. In essence, notwithstanding what the father had said in his application filed in July 2018 and his affidavit in support thereof which was different to the application, counsel produced a proposed minute which was different again. It had been provided to the mother. The effect of this minute was that the weekend supervision by the professional supervisor be discharged and that the father’s sister be the substitute. His proposal went further and said that after some time, that move to the supervisor be removed completely and that the sister take over the whole role. That is, the sister supervise weekends and the paid supervisor weekdays.
As I indicated to counsel for the father, it would not be appropriate for me to take the course of action he was urging for the longer term having regard to the specific findings of Thornton J to which I have referred. The focus of the following reasons relates to the immediate weekend contact. The midweek time will continue to be supervised by the paid supervisor. That will reduce the father’s costs from $800 per week to $350 per week.
The father’s application is that his sister be substituted for the weekend time. Ms S is older than the father. She filed an affidavit on 13 July 2018. She said that she was aware of the final orders of Thornton J and the subsequent contravention proceedings. She said she had been asked by the father to supervise his time with the children and she was willing to do so. She then said:
[16]I understand that in order to provide appropriate supervision, I am required to be in close proximity to (the father) and the children at all times and observe and monitor all interactions and conversations between (the father) and the children.
[17]I understand that if I witness any behaviour of which I consider inappropriate between (the father) and the children that I need to act proactively and immediately cease time.
Whilst that evidence was simple and might be seen as “ticking the boxes”, I was not comfortable that it followed that the sister understood the complexities of the role of supervisor. Accordingly, I required her for cross-examination.
Ms S was asked whether she had read the views of the Senior Registrar to which I later turn about the importance of undertakings and the role of the supervisor; she agreed that she did. The mother cross-examined the sister about whether she had any “professional qualifications” and she replied that she had not. She is a full-time parent of children who are older (but still teenagers) than the children of the father and mother. She was asked about whether she believed the allegations against the father but that question raises issues of just what Thornton J found. As I have already indicated, her Honour made no findings (and importantly, was not asked to make any findings), that the events then alleged had occurred. It was her Honour’s view that the father’s time needed to be supervised and that there was an unacceptable risk of harm although I am not sure that I understand what harm was being contemplated. The sister’s response to the mother’s question was that she regarded “the allegations as serious”.
The mother put to the sister that she would not be impartial because of the nature of the relationship between brother and sister. She rejected that. Her rejection was consistent with her affidavit evidence.
Ms S went on to answer questions about her own children and what parental role she plays on weekends. She told the court that her husband worked until midday on Saturdays but otherwise, in the afternoons, he was engaged with his children. She saw no reason why she would not be available for the children of the parties. She indicated that all of the children of both families would be together.
Ms S was asked how she separated the roles of supervisor as well as organising the meals for the children and her husband not to mention the father and she indicated that she did not have to spend time monitoring her children as they were old enough to care for themselves.
The mother had obviously had some conversation with the paid supervisor. The mother put to the sister that the father had “screamed” at his sister in the presence of the children but she denied that was the case. I have now heard the versions of both the father and the sister as tested by the mother’s cross-examination and am satisfied that absent evidence from the mother and also the paid supervisor, there is no reason for me to disbelieve the father and the sister. Of the particular incident, it transpires that the sister was preparing to feed the families and whilst the father was in the backyard of the house under the eye of the paid supervisor, the sister called out to him that he had to move off the game that he was playing and get ready to organise the food. The father and the sister each confirmed that he responded to the effect “I know” and “I just want to finish off the game”. It was the mother’s case that the supervisor had thought that his reaction was abusive in some way towards the sister but both the sister and the father denied that to be the case. The father readily said that he was loud and that he behaved that way as part of his nature, a statement confirmed by the sister.
I was specifically concerned about the reaction of the children and both the father and the sister said they were not adversely affected by what had taken place and that everyone then went on with going about their business.
Thus, to the extent that there is a conflict between the mother’s understanding of what occurred as told to her by the supervisor and the evidence of the sister and the father, my focus is on the reaction of the children and nothing indicated that they were adversely affected by the gruff or even rude response of the father towards the sister. Significantly, having regard to the responsibilities of this paid supervisor, it is relevant that even if she made some remark to the father about how he had responded to his own sister, she did not terminate the time between the father and the children. That was not to be the first time that something like this has happened.
In my view, the only evidence before the court must lead to a finding that whatever the father did, the children were not put at risk in a physical sense and there is no evidence that they were psychologically disadvantaged by that behaviour. The finding of Thornton J in 2016 was that the children were not in fear of their father. Nothing in the evidence before me now indicates that that situation has changed.
I am satisfied that the evidence of Ms S should be accepted. In response to my questions, she indicated that she was prepared to be the supervisor and she knew the importance of that role and the responsibilities that came with it. She said that she would not only terminate the time and get in touch with the mother to return the children if she felt there was a need to do so but if necessary, also call the police.
The mother’s view is that the nature of the relationship between the father and the sister is a disqualifying feature. Whilst that has been a view expressed by some authority, it cannot be seen as an absolute and disqualifying feature as ultimately, every determination must be made on the best interests of the children. There is no suggestion in this case that the children do not have a good relationship not only with their father but also with their aunt. They are in the presence of their cousins and they will continue to have the weekly time with a paid supervisor who can no doubt indicate any concerns that she otherwise has.
Insofar as the father has a problem about his loudness, rudeness or general aggression, he told the court in response to a question by the mother that he had undertaken counselling and seen a psychologist and none of that was put to Ms S to indicate that she had any concerns about his general demeanour.
The father’s evidence
The father is a big man and one might describe his answers as blunt and forthright. I desired he attend for cross-examination and it was only after I had concluded my cross-examination of him that the mother indicated that she wanted to ask some questions. She put to the father that there had been an incident as late as a week ago in which she said that B had tried to run away. The father denied that any such incident occurred. The basis of the mother’s question had come from some discussion with the paid supervisor. The father was willing to give an explanation as to how it occurred and having regard to the fact that there was no contra-evidence, there is no reason why I should not accept what he said to be true. Ironically, the father’s evidence is not entirely inconsistent with what the mother said she was told.
According to the father’s version, he, the supervisor and the three children went to a park as a prelude to obtaining fish and chips to eat. B arrived there first and got on a swing whereupon his sister asked could she have it. The father said that he suggested to B to give the sister a turn and the child declined and then as a result of something that was said, got off the swing and began to storm off. Where he was going, I am not sure but the father said that the paid supervisor called him back and he returned. The father said that he then went and bought the fish and chips and everyone returned home but B sat outside the house and refused to eat. That is consistent with the question that the mother put as having been told to her by the supervisor. The father dismissed any problem with that saying that it was typical of a child who was not getting his own way. I am not convinced it is as simple as that which is one of the reasons why I declined to adopt all of the orders proposed by the father to exclude the professional supervisor. It seems to me that if there is such a problem, the parties need to have it addressed with some professional help as it is potentially consistent behaviour with a child entering into teenage years and not getting his own way.
The mother had every opportunity to test out this evidence with the father and he impressed me as being forthright acknowledging that there had been a problem with B. There is no suggestion of any problem with the other children. Most importantly however, it is significant that the paid supervisor did not intervene to terminate the time. This, as with the previous incident, is indicative that there is a subjective view by the paid supervisor that the father needs to be careful about how he speaks to his children and how he disciplines them but she seems unwilling at this stage to terminate the father’s time.
Similarly, no application has been made by the mother consequent upon those two particular incidents having occurred to suspend contact time.
Having regard to the ages of these children, it is important to also observe that they should not be given the opportunity to decide whether or not they participate in the relationship with their father. If there is a problem as the mother seems to think, it is a matter that should either be determined by the court or alternatively, by the parties obtaining assistance from an agreed social scientist.
I am satisfied that the incident to which the father referred was not such as to warrant terminating the time with all children and most importantly, not such as to require the sort of supervision constantly of a paid supervisor at the expense to which I have already referred.
Conclusion about the aunt
In my view, the evidence of the aunt having regard to the nature of the sorts of allegations that have been made here, justifies accepting her undertaking that she would intervene to protect the children from harm which is different to that contemplated by Thornton J. That does not mean that that harm contemplated by Thornton J is irrelevant. The problem now is different. I indicated that I would make the undertaking much more succinct than that drawn by the Senior Registrar in the hearing under review. Thus, any alteration to the existing orders will be subject to the aunt not only accepting that undertaking and executing it but only upon the basis that she has advice as to the consequences of her failure to comply with it.
Should family members supervise children’s time?
The mother pointed to the reasons of the Senior Registrar and I specifically now refer to that particular judgment. At [78], the Senior Registrar said as follows:
The Full Court of the Family Court of Australia of Australia in the marriage of B and B[2] set out that it is undesirable in most cases for friends or family members of the access parent to supervise children during the access period in circumstances, whether either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring. It further opined that supervised access may be ordered for the time limited purpose for re-establishing the relationship between the access parent and the children, but is not appropriate as a long term measure. Supervisors must be available for the children for safety and support at all times and must be prepared to intervene on the children’s behalf if an issue of protection arises during an access visit. It is unrealistic to expect a supervisor to undertake those responsibilities on a weekly or fortnightly basis for an indefinite period. In that particular case the supervisors did not believe that the husband had abused the children and it was considered that the wife in that case was justifiably distressed at the prospect of access in such circumstances.
[2] B & B (1993) FLC 92-357
Whilst I agree with the learned Senior Registrar’s views, every case must be determined on its merits. It is not the law that family members are excluded from supervision simply by virtue of their family association. It is not the law that because they do not believe the truth of the allegations, they should be excluded. The critical question is whether or not they understand the finding of the court and the importance of the type of protection of children under the orders and agree to comply with responsibilities under any undertaking they give.
Whilst the court must scrutinise the views of family members, ultimately, the court has to exercise its discretion as to whether or not that evidence should be accepted. Some comfort can be drawn in cases such as this from the court hearing evidence from the relative to indicate that they understand that contempt of court could rise from a breach of the undertaking and could have such consequences as imprisonment. In this case, Ms S told me that she understood those responsibilities and would comply with them. It must also not be lost on both parties that the court does understand the cynicism held by the mother about the ability of the aunt to protect the children but actions will speak louder than words. That is particularly so in cases such as this where, as I have pointed out on two occasions, a paid supervisor did not intervene so as to terminate the contact regime nor return the matter to the court with expressions of concern.
The proposed orders
The power of the court to make a parenting order lies in Part VII of the Act. In many cases, the assessment must be made on the basis of the available evidence which is often unsatisfactory. However, the best interests principles still apply. In determining what is in the best interests of a child, a court has to refer to the relevant provisions in s 60CC of the Act.
Before dealing with s 60CC, it is unnecessary for me to deal with the statutory pathway and the presumption in s 61DA having regard to the fact that neither of those matters was contemplated by the parties and indeed, after a six day hearing in 2016, Thornton J clearly contemplated those matters. Indeed, her Honour dealt with the other matters in s 60CC(3). There is no point in me dealing with those issues as they do not affect, nor are they relevant to, the matters that I have to determine.
The fundamental problem here is the conflict between the children having a benefit of having a relationship with their father and the need to protect them from any harm that might arise from that interaction between them. I find that the evidence supports a conclusion that there is a good relationship between the father and the children and that it should be fostered. That was the position found by Thornton J and nothing I have heard has changed that position. Thus, the only question for the court is whether or not there is a need to protect the children from harm. As I have already observed, the harm that seemed to be contemplated by Thornton J related to sexual impropriety by the father. That seems now to have slightly changed to a question of some sort of emotional or psychological harm to the children as a result of the way in which the father interacts with them. There is no evidence here to indicate that the father behaves other than he has always behaved and whilst he must clearly learn to temper his enthusiasm and aggression, he now faces the prospect that his own sister will have control of how he behaves. To the extent that there is a concern about the emotional or psychological harm of the children as a result of something that the father has done, she has the entitlement (if not the obligation) to terminate the contact.
In my view it is in the best interests of the children balancing those two consideration that the sister be given the opportunity to undertake the relevant supervision subject to the undertaking to which I turn in a moment.
The mother’s view
In a final submission, the mother’s position was clear. She said the court could not rely upon the sister’s objectivity. I reject that. The mother’s position was also that the children would be the only ones who could provide evidence and she pondered out loud how that would happen. That is an issue about which she needs to obtain some professional advice. She did say however that if the orders proposed were made, this case would ultimately end up in court again. That would be very sad and clearly not in the best interests of the children to see the war go on. It seems to me that the most appropriate course of action is for the parties to work out some way of addressing what each sees about the other as a criticism. The father has indicated that he has already been to a psychologist. That does not seem to have satisfied the mother. The mother is evasive about allowing any form of communication between the father and herself. Until such time as all of those problems are addressed, these children are going to continue to live in a parallel world where, if they talk about the other parent at all, it can only be in unpleasant terms. The parents in this case will have to live with the consequences of that.
I find in the circumstances that the orders set out at the start of these reasons are the appropriate outcome.
The undertaking
In my view, the undertaking of the sister must be in the following terms:
1. I agree to supervise the time between the father and the children B born … 2007, C born … 2009 and D born … 2011 knowing that a failure to supervise, if found proved, may amount to a contempt of court which is punishable inter alia with imprisonment.
2. I will have the three children within my sightline and hearing at all times when the children are in the father’s care.
3. To the extent that the father desires to leave my presence, I will indicate to him that he is not authorised to do so. If he acts without my authorization, I shall terminate the time.
4. If the father is aggressive towards, or yells at, the children to the extent that they are distressed, I shall take responsibility for removing them from that environment and providing them with solace but if they are distressed to the point that I cannot comfort them, I will contact the mother.
5. If I observe the father behaving in any way which I consider puts the children’s emotional or physical well-being at risk, if the father does not immediately desist upon my request, I will terminate his time and immediately remove the children and return them to their mother.
6. To the extent that I am requested, I will provide written advice to the mother as to any problems that may have occurred and if there are none, upon her request, I shall advise her accordingly.
7. I agree to communicate with the mother if she so desires about issues for which I need to be watchful and generally in relation to the welfare of the children.
8. To the extent that I am requested to do so, I will provide evidence to any future court hearing as to what I have observed.
9. I am prepared to continue my supervision of the children as described above and in the event that I am unable to do so at any time, I shall advise the mother that my supervision is unavailable for that particular day and the contact will not take place.
10. If I become ill at any stage during the period of time that the children are under my supervision or I am unable to fulfil the full time and obligations, I shall immediately contact the mother and terminate the contact time.
11. I give these undertakings to the court well knowing that a breach of any of them may amount to a contempt of court and I have had explained to me by a legal practitioner who has endorsed his or her signature to this undertaking that the document has been comprehensively explained to me and I enter into it willingly.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 February 2019.
Associate:
Date: 22 February 2019
4
1