Kingley and Arndale

[2009] FamCA 1122

FAMILY COURT OF AUSTRALIA

KINGLEY & ARNDALE [2009] FamCA 1122

FAMILY LAW – CHILDREN – Interim parenting orders – Provision for selection of Contact Centre – Father permitted to bring additional people to each contact visit – Father permitted to take the Child offsite during contact visits – Both parents to attend blood testing – Adjourned for interim hearing

Family Law Act 1975 (Cth), ss 60CC, 69ZR

APPLICANT: Mr Kingley

RESPONDENT: Ms Arndale

INDEPENDENT CHILDREN’S LAWYER: Ms Dart, Solicitor, Legal Aid Office

FILE NUMBER: BRC 1363 of 2008

DATE DELIVERED: 30 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 30 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harrison of Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT: Smith & Associates

COUNSEL FOR THE RESPONDENT: Mr George of Counsel appeared for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: John-Paul Mould Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Dart, Solicitor appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The proceedings be listed as a half day hearing at 11.00 am on

   
   3 December 2009

   at the Brisbane Registry of the Family Court.

2. Leave is given to the parties to inspect and copy material from the Court file, other than from the correspondence file.

3. Pursuant to rule 19.50 of the Family Law Rules 2004 this matter is one proper for the attendance of Counsel.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The parties make themselves available to attend upon Dr V for the preparation of a psychiatric assessment of each of them as directed by the Independent Children's Lawyer or Dr V.

2. The Independent Children’s Lawyer given leave to provide to Dr V (or any other specialist if required) any subpoenaed documentation or documentation from the Court file required to assist in the preparation of the psychiatrist assessments of the Mother and Father.

3. The Independent Children’s Lawyer given leave to file an affidavit by Dr V.

4. Following receipt of the psychiatric assessments, that pursuant to section 62G, a Family Report be prepared by Mr P and the parties do all acts and things necessary to ensure their and the child’s attendance upon the Family Consultant for  the preparation of that Report.

5. The report writer has leave to read any filed documents together with any documents produced on subpoena.

6. All previous Orders be discharged.

7. The child, C, born … December 2006, live with the Mother.

Father’s Supervised Time with the Child

1. In the event the Mother declines to make the necessary arrangements for the child to be delivered to and collected from the O Contact Centre (the Mother being prohibited from attending such Centre), then the Independent Children’s Lawyer is authorised to select such other contact centre in the South East Queensland area as may be able to provide time for the Father to see the child on a weekly basis and the parties are required to attend such contact centre on the same terms and conditions as provided for in these Orders for the O Contact Centre save that the Father is not required to contribute to the Mother’s travel costs and paragraphs 21 to 25 are not to apply.

2. The child shall spend time with the Father at the O Children's Contact Centre or such other contact centre as may be nominated by the Independent Children’s Lawyer pursuant to paragraph 11 hereof (“the Centre”) as follows:

   a.   for three (3) hours once in each week at times nominated by the Centre, with an additional visit to occur on Father’s Day, the child’s birthday and Christmas Day, or as close as possible to those days as the Centre can facilitate, subject to paragraphs 16 to 20 below.

3. In the event the Centre offers supervised time only at times less regular than as specified in this Order then, unless the parties are otherwise able to agree in writing, such time shall occur as offered by the Centre.

4. Should the time the child spends with the Father at the Centre vary by reason of the closure of the Centre during school or public holidays or on the Mother providing twenty-one (21) days written notice of the intention to travel with the child during school holidays for a period not longer than one (1) week, then in such event, unless there is agreement in writing to the contrary, the next occasion for the child to spend time with the Father shall occur at times when the services can be provided by the Centre.

5. Both parties:

   a.   comply with any appointments made by the Centre for supervised time;

   b.   comply with all reasonable rules of the Centre and comply with all reasonable requests or directions of the staff of the Centre;

   c.   will not take any other person to the Centre, other than as provided for in paragraphs 21 and 27 hereof;

   d.   will not serve or arrange for service of documents on the other party at or in the vicinity of the Centre and/or at or about the time the parties attend the Centre;

   e.   will not discuss any matter which is the subject of, or relates to, Family Law proceedings whether past, present or future with the Centre staff in the presence or vicinity of the child;

   f.   will not criticise, denigrate, demean or ridicule each other or any member of the person’s family or household to the Centre staff or in the presence of the child; and

   g.   will not photograph or video tape the other party or allow their associates or agents to do so.

6. The Co-ordinator of the Centre is requested within seven (7) days to provide to the parties or their legal representatives a schedule of the dates and times of the proposed visits.

7. The parties will ensure that they do all acts and things necessary to ensure that the child spends time with her Father in accordance with the schedule.

8. The parties negotiate any changes to the schedule which are necessary through their legal representatives and the Independent Children’s Lawyer will advise the Centre of any changes to be made.

9. The parties are only to contact the staff of the Centre if a visit needs to be cancelled with such contact to be by email or in the event of an emergency by telephone.

10. Unless any changes are agreed to by the parties, visits are otherwise to occur in accordance with the schedule provided pursuant to paragraph 16.

In the event the Father’s time with the child is to be spent at the O Contact Centre then paragraphs 21 to 25 are to specifically apply.

1. The Mother shall arrange for someone to deliver the child to the Centre in sufficient time before the commencement of the Father’s time with the child and use her best endeavours to ensure that that person removes himself or herself from the Centre and its vicinity as soon as the handover occurs, and that he or she promptly leave the Centre and its vicinity at the conclusion of the Father’s time. 

2. The Father use his best endeavours to ensure that whoever delivers him to the Centre promptly leaves the Centre and its vicinity and only returns at the conclusion of the Father’s time.

3. The Mother will not be present at the Centre at any time.

4. The Mother’s representative will not use the R Street Entrance to the Centre.

5. The Father will not be at the Front Entrance to the Centre at any time.

6. The Father is to pay all costs associated with any attendance at the Centre as may be required by the Centre including any costs nominally payable by the Mother.

7. Subject to the requirements of the Centre the Father be accompanied by no more than two (2) additional people whilst spending time with the child each scheduled visit to include the child's paternal grandparents and their respective partners, the Father’s partner, paternal aunt and her partner and the child's cousins, J, H and A.

8. Each parent provide to the other party and the Centre no less than twenty-four (24) hours notice of non-attendance for any planned visit to the Centre together with a detailed explanation for such non-attendance.

9. The Father’s time may be spent off-site if deemed appropriate by the staff of the Centre supervising the Father’s time.

10. If during the currency of these Orders the parties and the Independent Children’s Lawyer agree in writing to vary these Orders the parties have leave to list the proceedings in Chambers for consent orders to be made.

11. The child shall communicate with the Father by telephone each Wednesday and Sunday between 6.30 pm and 7.30 pm with the child to initiate the telephone call to the Father.

12. The Father attend upon Dr E, psychiatrist, for treatment as directed regarding alcohol abuse and dependency.

13. The Father obtain a report from Dr E as to the progress of his treatment and serve a copy of the same on the Mother or her solicitor and the Independent Children’s Lawyer by 1 March 2010.

14. The Mother and the Father shall attend, fully participate in and complete such courses and programs as recommended by their individual health professionals (including but not limited to a parenting course, parenting orders program for high conflict families and anger management) and to provide evidence of completion of such courses to the Independent Children’s Lawyer and the other party or their solicitor.

15. The Mother and Father shall undergo random blood tests of their Carbohydrate Deficient Transferren levels and a urine alcohol and drug screen as required by the Independent Children’s Lawyer, such tests to be undertaken within twenty-four (24) hours of a request being received, the costs of which are to be borne by the parties.

16. Within seven (7) days of the date hereof, the parties provide to the Independent Children’s Lawyer, an authority authorising their general medical practitioner to provide the results of any drug or alcohol testing undertaken in accordance with a request, made in accordance with paragraph 35 hereof, direct to the Independent Children’s Lawyer.

17. In the event the results of the drug and alcohol tests undertaken by the parties pursuant to paragraph 35 hereof are provided to the parties directly, such results are to be disclosed immediately upon receipt to the Independent Children’s Lawyer and the other party or their solicitor.

18. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1363 of 2008

MR KINGLEY

Applicant

And

MS ARNDALE

Respondent

REASONS FOR JUDGMENT

1. The Federal Parliament has made a whole series of laws governing how Judges are to act and determine issues in relation to a child’s best interests. These are under the heading How a Court Determines what is in a Child’s Best Interest, set out in section 60CC and the relevant factors are divided into Primary Considerations, and then Additional Considerations. The primary considerations are:

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

   That is stating the obvious.  It has been long known that children growing up in single parent households are at a singular disadvantage; far better for the emotional health of a child to have a relationship with both parents.

2. The court also has to take into account, as a primary consideration, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. There are various other factors set out as additional considerations, including the capacity to parent, and the wishes of the child, and things of that nature. Under the new divisions relating to procedures and evidence in such matters – it is division 12A, and of Part VII of the Act, a Judge is able to throw out the rules of evidence and rely on information as long as it passes the test of relevance. If this matter goes the full distance, and comes to a trial, I run the trial according to relatively strict standards that have always applied, but at this stage, I am able to speak to the parties. In particular, under section 69ZR, the Parliament has said:

   “Power to make determinations, findings and orders at any stage of the proceedings:  If at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:

   (a)  Make a finding of fact in relation to the proceedings;

   (b)  Determine a matter arising out of the proceedings;

   (c)  Make an order in relation to an issue arising out of the proceedings.”

3. I have not familiarised myself fully with this file as to do so would be a daunting task.  I will have a better appreciation on the next occasion and I will be availing myself in all likelihood of those provisions at that time to give indications as to how I think the matter has progressed and should progress in the future.  As I have said, this is the first day of the less adversarial trial process.  I have wide flexibility in how the matter proceeds from here.  I intend, as I have indicated already, to set this matter down for an interim hearing on 3 December at which time, as I understand it, the father will be seeking that he have unsupervised time with his daughter, C, who is two years of age.  I have stipulated what I would require, from the father’s point of view. 

4. The mother can file her objections, set them out in affidavit form why he should not have unsupervised time.  I can say that I regard compliance with orders and directions as of the highest consideration, and if orders that I make are not complied with, I have various remedies.  For example, the father is the applicant; I can stay the proceedings, stop him going any further until he does comply.  As far as the mother is concerned, there are various other courses that I can adopt, including precluding her from contesting the proceedings until she does comply.

5. At the present time, the father resides with his partner, Ms S, on the Gold Coast.  The father has a significant number of convictions for driving under the influence of liquor, as well as disqualified driving.  That, of itself, sets off alarm bells as to why would I give a person with that record unsupervised time with a two year old girl.  What is the risk of the father jumping in the car and taking off at great risk to the child?  He may be able to persuade me but I would be much more inclined, if there was a reliable supervisor, an independent reliable supervisor, around but that is a matter for the father whether he can come up with somebody.  That will be a matter to be determined in early December. 

RECORDED  :  NOT TRANSCRIBED

1. The mother currently lives at W.  She has, I gather, not re-partnered.  She has four children in her care including the youngest, C. 

2. Counsel have appeared for each of the parties.  It is not necessary for me, for the purposes of today’s hearing, to canvass the past history of litigation.  Given the father’s estimate that the parties have expended close to $1.5 million in legal fees, it would take a considerable period of time, I expect, to, in fact, canvass the history in relation to property settlement proceedings in the Supreme Court and various other aspects of enforcement and litigation generally.  Normally, in these types of proceedings, what we do is tell the parties they can only file minimal material, questionnaires, that sort of thing, because filing material is like putting petrol on the fire.  The parties start making allegations and then there are counter allegations coming back, and it is a game of, “My allegations are better than yours.”  The best thing is to allow somebody like Mr P to come in and give an independent assessment, and we just work from there.  The reality is, in this case I have got psychiatric reports.  I will be exercising the wide measures given to me by division 12A and familiarising myself with the evidence.  At all times I will place on record what it is that I have taken into consideration, and will give the parties and their lawyers the opportunity to be heard in relation to the reliability of that evidence.  A classic example is the contact centre records.

3. The proceedings will be at all times in my docket.  So, regardless of the previous history of this matter, perhaps in the Federal Magistrates Court, the matter is now in my docket, and it will stay in my docket until finalisation by decision by myself, or by the parties coming to an agreement.  Sometimes what we have done is to have an agreement that will last for, say, 12 months, and I will review it in 12 months’ time.  There is considerable flexibility. 

4. At this stage I note that the most recent piece of reporting comes from Mr P, who is the family consultant engaged by the Family Court, and he provides what is known as an assessment report.  And he provided that last month.  Under the heading “The Parents’ Understanding of [C’s] Needs”, he writes as follows:

   “[The father] describes [the mother] as a controlling, jealous and spiteful person.  He told me that during his relationship with [the mother] he had “no suspicion of what she is like,” until he “let her into his business dealings.”  He claims [the mother] and he agreed that she would work as his private assistant, but after a while she began wanting to run everything and control the money side of things.  [The father] believes this insight into what he referred to as [the mother’s] real agenda is very relevant to the current dispute over [C’s] living arrangements. 

   [The father] displays a reasonable level of insight, evidenced in part by his ability to examine his contribution and role in past conflict with the mother, that is, alcohol and aggression problems, and the manner in which his attitude and personality has impacted on attempts to resolve the dispute.  In discussing each party’s mindsets towards the current dispute, he conceded, “We’re both strong-minded people.”   [The father] also shows reasonable insight and awareness into the potential for the conflict between the parties to impact badly on [C]. 

   He is also mindful that, regardless of the reasons for the conflict, there is potential that it could affect his relationship with [C], but he emphasised that he worries that [the mother] may have “tried to influence how [C] comes to see him”.  He stated, “Considering the tension between me and her mother, I think [C] and I get on well.” Despite these encouraging features, [the father] was preoccupied with the things that the claims [the mother] has done to undermine his relationship with [C].  

   [The mother] describes [the father] as a person who is difficult to negotiate with.  She reports he is a heavy drinker who, during their relationship, was “quite aggressive” towards her.  She told me that [C] did not directly witness the family violence, but said, “I think she is aware of it.”  [The mother] said she agrees with the idea that following a separation children generally benefit from having a relationship with both parents.  She claims to prepare [C] for the visits with her father, and said she tries not to allow her own feelings to interfere with how [C] views the visits.

   She stated, “What do you do when you know for her to have contact with her father is in her best interests, but you know the father is unsuitable because his life is strongly based around alcohol?”  It is [the mother’s] belief that [C] is at risk if she spends time with her father that is not supervised because of the type of things she is likely to witness when he drinks.  She believes that [the father’s] misuse of alcohol causes him to become aggressive and irresponsible, and is concerned about the impact on [C] whilst she is in his care. 

   Although I observed each parent to show some awareness of [C’s] situation in the current matter, I was not convinced it is to a level adequate to be assured that they fully and accurately perceive her needs.  Furthermore, I was struck by each party’s limited insight into just how potentially harmful their respective past and present actions could be to their young daughter’s wellbeing.  I felt both parents minimised this possibility.”

1. The parties have this document in their possession.  They have read it.  And I ask Mr P, “Have you got any comment, Mr [P]?”  He said, “Neither of them – neither of them mention [C].  It is all about “me, me, me,” or “him/her, him/her,” condemning the other party – particularly on [the mother’s] part – or on [the father] talking about the problems as focussed on himself, rather than the child.  I was particularly struck by the fact that I said to [the mother], “There is this highly dysfunctional relationship.  What part, if any, do you say you contributed to the state of the relationship?”  She said, “Not a jot.  All his fault.”  I mean that would indicate a lack of insight and certainly the reports bear that out. 

2. For the father, I have to say one thing very strongly to him, and that is, “[Mr Kingley], you have to work out what your priorities are.  Do you want a relationship with your daughter, or would you rather get on the grog?”  It’s a matter for you.  If you take the latter course, you are not going to have any slack cut by me, I can assure you, because my priority at all times will be towards young C. 

3. Now, I stood the matter down during the course of the morning’s proceedings, and encouraged the parties to enter into some interim arrangements, preferably by consent, so we get some way of – and the parties agreed on one thing, that they would both like to settle the whole proceedings.  But they have come back with eight pages of orders that just leave me breathless.  I can tell you, there are very, very few cases that I have come across where I have had such details specified.  Seemingly, the necessity for this has arisen because of past behaviours.  Now, I will be turning to those orders in a minute.  There are also separate directions, and I will be deleting directions 4, 5 and 6.  I will not be ordering a section 65L report.  And I will be adding to the directions by giving the independent children’s lawyer permission to copy Dr V in.

4. But at this point in time I am looking at the various submissions made on behalf of the mother as to what it is in the orders that she does not accept.  And the first and probably the most significant issue is the mother says she, in accordance with paragraph 12, says:

   “The mother shall arrange for someone to deliver the child to the [O] Contact Centre.”

5. The reason for this is, as I understand it – not attributing blame at this stage, but – the O Contact Centre says, “We will not have the mother attend.”  Hence that provision.  The mother says, “I am a very busy woman and I have four children to look after and I live in [W] and I cannot take the child once a week to [O] to this contact centre.”  So it will have to be P.  I have not checked, but I am told that the P Centre is only available once a fortnight.  Now, I am going to call the mother’s bluff, to some extent, because what I propose to do is I will order the father to pay $50 if the mother attends at O.

6. Now, that can be paid through the solicitors, and if the father has not paid it, nothing happens on 3 December, except he will be ordered to pay the other side’s costs because the matter is likely to be adjourned.  It is not much, $50, and it covers the mother’s reasonable petrol expenses.  If, however, the parties have to go to P, the mother can go and the father has to contribute nil, because the only reason they are going to P is, on my reading, at this point in time, attributable to the mother’s past unacceptable conduct.  Now, what I further propose to do is to request the Independent Children’s Lawyer make enquiries from various contact centres in South-East Queensland.  It could be the R Contact Centre or the L Contact Centre.

7. If any of those contact centres can facilitate weekly contact times, then the orders are to provide that the contact is to be at that venue - and I use a Latin term, which will not mean much to you – mutatis mutandis.  It means “change without change.”  All you have got to do is read the orders as if, instead of “[O] Contact Centre,” it will be “[G] Contact Centre,” save paragraph 12 is “The mother shall deliver the child.”  So we will see what happens on 3 December.  If a new centre is selected, it is only to be selected if it can provide weekly visits.  For example, because weekly visits have been ordered by the court, it may be the P centre will provide weekly time for the limited time available.  We are not talking a great deal of time.  But if P can provide weekly, that is the end of the matter.  If we have to go elsewhere, I direct that the parties are to do all in their power to attend at such contact centre to complete the interview process.

8. The mother further objects to the provision in the draft orders for the father to attend at contact visits with his parents and his partner.  This is paragraph 17:

   “That the father be accompanied by no more than two additional people while spending time with the child each second scheduled visit.  These people shall only include the child’s paternal grandparents and their respective partners, the father’s paternal aunt, etcetera.”

9. I propose to make it that it will be at each visit, the father is at liberty to bring these people along, subject to the requirements of the contact centre.  I find the mother’s objections to be fatuous.  I accept the submission the father’s case would be significantly prejudiced if he is in a long-term relationship with Ms S, and she has not had an opportunity to get to know C.  Mr P, in the fullness of time – a couple of months’ time – is going to have to prepare a family report and the child will not have had the opportunity to develop a relationship with Ms S.  So as far as possible, I will insist there be a level playing field, and that includes Ms S being able to form a relationship with C.

10. Can I just caution the parties: if you seek in any way to undermine the other parent’s position, it will out. Almost as certainly as night follows day, the child will blurt this out to a report writer: “Mummy said this” or “Daddy said this.” It rings like a loud bell in everyone’s ears because yes, we are expecting this sort of thing to be said. And to go back to what I quoted from section 60CC, it is fundamental in assessing these cases that I be able to be satisfied that a parent will promote the other parent’s relationship with the child, and certainly not make any effort to alienate the other parent from the child’s affections.

11. The mother said, “Well, the father can go off to do all the blood tests, etcetera, but I should not be included.”  Almost invariably in these situations, if it is good for one side, it is good for the other.  I propose to leave the mother’s name there, and I point out tests.  I take a very strict view of any delays in attendance.  I become very suspicious of that and I am highly suspicious when I see that the tests indicate dilution. 

12. Now, the mother’s objection, finally, was that whichever contact centre it is, the father should not be allowed, under supervision, to take the child off site.  I find such objection to border on the farcical.  The contact centre has its obligations.  What on earth is going to go wrong if the father, under supervision, takes the child over to a local park or a playground, to a cinema, or whatever time is available for a milkshake, etcetera?  So for those reasons, I propose to put in place orders as per the draft.  So far as the directions are concerned, as I said, I will delete paragraphs 4, 5 and 6.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date: 30 October 2009