Kubic and Waddington
[2018] FamCA 1091
•27 February 2018
FAMILY COURT OF AUSTRALIA
| KUBIC & WADDINGTON | [2018] FamCA 1091 |
| FAMILY LAW – CHILDREN – interim orders – where the mother seeks a review of the Senior Registrar’s decision – where the application is opposed by the father and Independent Children’s Lawyer – hearing de novo – where the mother seeks the child spend supervised time with the father until 1 April 2018 – where the mother alleges the father is a risk to the child – where the mother does not seek that the child spend any overnight time with the father – where the father seeks that the orders of the Senior Registrar remain in full force – order made that the father spend time with the child pursuant to final orders made 20 July 2016 for eight hours each week with changeover facilitated by a contact centre – order made that from 24 March 2018 the child commence spending overnight time with the father. |
| Family Law Act 1975 (Cth) s 60CC, 61DA |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 |
| APPLICANT: | Mr Kubic |
| RESPONDENT: | Ms Waddington |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 10055 | of | 2014 |
| DATE DELIVERED: | 27 February 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 25 January 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wilson |
| SOLICITOR FOR THE APPLICANT: | RT Legal Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr A Combes |
| SOLICITOR FOR THE RESPONDENT: | Trapski Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Tesoriero |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
That until further order the child X born … 2014 spend time with the father as follows:-
(a) In accordance with Order 4(e) of the Orders made 20 July 2016; and
(b)As from 24 March 2018 each alternate weekend from 10.00am on Saturday until 12 noon on Sunday in addition to the time in (a); and
(c)As from 19 May 2018 each alternate weekend from 10.00am Saturday until 5.00pm Sunday in addition to the time in (a).
That pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That the mother’s Application in a Case filed 22 December 20127 and the father’s Response to Application in a Case filed 17 January 2018 be 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 Kubic & Waddington 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 10055 of 2014
| Mr Kubic |
Applicant
And
| Ms Waddington |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in a Case filed 22 December 2017 the mother, Ms Waddington seeks a review of order 4 of the orders of Senior Registrar FitzGibbon made on 28 November 2017. Further, she seeks a stay of those orders pending the determination of her Application in a Case. Ultimately the application for a stay of those orders was not pressed in the hearing before me. The orders sought by her are:-
·That the child X, aged three years and five months spend time with the father each Saturday from 9.30am to 4.30pm and that such time be supervised by a supervision service until 1 April 2018 and thereafter be unsupervised;
·That the father do all acts and things to obtain a report from the supervision service and provide that report to the mother’s lawyer and the Independent Children's Lawyer by no later than 1 March 2018;
·That changeovers occur at C Children’s Contact Centre and that the father personally attend changeovers;
·That the father do all acts and things to enrol in and complete a parenting skills program at a nominated provider and provide evidence of completion of that program to the mother’s lawyer and the Independent Children's Lawyer; and
·That the parties do all acts and things to enrol in and complete the POP program at B Group.
By a Response to Application in a Case filed 17 January 2018 the father seeks orders that the mother’s application be struck out and that the orders of Senior Registrar FitzGibbon made 28 November 2017 remain in full force. The father’s position is supported by the Independent Children's Lawyer.
The applications were listed before me in a Judicial Duty List. Due to pressures in the list I reserved my judgment. These are my Reasons for Judgment.
Background
The father is aged 30 years. He is employed in an industry.
The mother is aged 31 years. She is also employed in an industry.
The parties commenced cohabitation in January 2014 and married in the same year. Separation occurred in September 2014.
There is one child of the marriage, the child who was born in 2014 and is aged three years and five months.
On 20 July 2016 final orders were made by consent with respect to parenting matters (“the final orders”). The final orders provide that:-
·The parties have equal shared parental responsibility for the child, save that the mother has sole parental responsibility in relation to selection of the child’s childcare and kindergarten prior to the commencement of his primary school;
·The parties do all acts and things to ensure that the child’s surname is registered at the Office of the Registry of Births, Deaths and Marriages as “Kubic-Waddington” and that that surname is used for the child and that the father is shown as the father on the child’s birth certificate;
·the child live with the mother;
·the child spend time with his father initially for three hours each fortnight at the C Children’s Contact Centre supervised by staff at that centre and thereafter, on an increasing basis, culminating as from 20 May 2017 for a period of eight hours per week with changeovers to be facilitated at the C Children’s Contact Centre, such time to be unsupervised;
·The parties to attend upon a family law psychologist in 2017 for confidential counselling on how to improve their parenting relationship and agree upon the child’s future parenting;
·If the parties remain in dispute following the confidential counselling they are to attend upon Ms D for a further report.
There is a notation to those orders that it is agreed between the parties that either may commence parenting proceedings after 20 July 2017.
It is common ground between the parties that time occurred in accordance with the final orders until June 2017. At that time, the mother requested that there be a resumption of supervision of the father’s time. Notwithstanding his objection as to the need for such supervision the father acceded to the mother’s request so as to ensure that he could continue to spend time with the child.
On 12 July 2017 the father filed an Initiating Application. That application sought an order pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) that a Registrar of this Court sign all documents necessary to ensure that the child’s birth records were amended in accordance with the final orders to provide that his surname be registered with the Registrar of Births, Deaths and Marriages as “Kubic-Waddington”.
On 4 August 2017 the mother filed a Response to Initiating Application in which she sought interim orders including an order that the operation of the final orders be suspended, that she have sole parental responsibility for the child, and that the child’s time with the father be supervised by a contact centre. The mother also sought the appointment of an Independent Children's Lawyer.
On the same date the father filed an Amended Initiating Application in which he sought interim orders that the mother comply with previous orders in respect of him spending unsupervised time with the child, that the parties attend upon a family law psychologist for confidential counselling and that they attend upon D for the purposes of an updated report.
Pursuant to orders made 11 August 2017 an Independent Children's Lawyer was appointed. In addition, orders were made for the preparation of a report by D. The proceedings were otherwise adjourned to the Senior Registrar’s Duty List on 28 November 2017.
On 22 August 2017 the mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence. In that document she alleged that the child had suffered psychological harm as a result of being exposed to family violence by the father, that the father and the paternal grandmother had “smacked” the child and that the child had displayed inappropriate and aggressive behaviour since having unsupervised time with the father, including using profane language.
On 28 November 2017 following a contested interim hearing Senior Registrar FitzGibbon made orders as follows with respect to the child:-
4.That until further order the child [X] (male) born …2014 (“the child”) spend time with the husband:
(a)in accordance with order 4(e) of the consent orders made 20 July 2016; and
(b)as from 3 March 2018 each alternate weekend from 10am Saturday until 12 noon on Sunday in addition to the time in (a); and
(c)as from 28 April 2018 each alternate weekend from 10:00am Saturday until 5:00pm Sunday in addition to the time in (a).
5.That until further order, the parties continue to use the [C] Contact Centre for supervised changeovers AND THE COURT NOTES that in the event that the [C] Contact Service is unable to provide a commencement or conclusion time at precisely that as specified in the Orders, then such time as the Service can accommodate in reasonable proximity to the times as ordered should be taken, and failing that then there be liberty to seek amendment, on notice and by consent, to these Orders.
6.That until further order the wife, her servants and/or agents be and is hereby restrained from taking the child to any treating health professional including but not limited to any psychologist or counsellor, save a general practitioner for normal treatment of any childhood illness, without first obtaining:
(a)the agreement of the husband and ICL in writing; or
(b)an order of the Court.
7.That until further order, neither party, their servants or agents including family members whether adult or minors film, video or record or permit to do so the child nor question him about his wishes, views or any of the evidence nor show him any of the evidence, nor permit any other person to do so nor discuss the proceedings or evidence or leave any of it where he may find it, or within his presence or hearing..
8.That the wife forthwith advise the husband in writing of the name and address of the private investigator referred to in her affidavit filed 4 August 2017.
9.That until further order the parties do all things necessary to use the Mymob parenting application to communicate in relation to the child’s routine and needs.
10.That the parties and ICL have liberty to apply to the Court by filing an Application in a Case supported by Affidavit.
11.That all extant interim applications including the wife’s application sought in her Response filed 4 August 2017 be dismissed.
12.That this matter be placed in the list of cases awaiting allocation to a judicial docket with priority as and from this day.
13.That pursuant to Sections 65DA(2) and 62B 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
It is order 4 of those orders that the mother seeks to review.
The Hearing
A review of a decision of Senior Registrar FitzGibbon proceeds by way of hearing de novo. The issue before the Court is interim parenting. As such, the hearing was conducted on the papers. Each party relied upon material referred to below and the submissions made by their counsel.
Given the nature of the hearing contentious facts cannot be determined without evidence being properly tested. Accordingly, in determining the matter, I have relied upon those facts which are agreed or not in issue.
Parenting Matters
In determining interim parenting matters, the Court must regard the best interests of the children as the paramount consideration (Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 (“Goode’s case”)).
The Full Court confirmed in Goode’s case that in determining interim parenting applications the Court should:-
(a)Identify the parties’ competing proposals;
(b)Identify the issues in dispute;
(c)Identify any agreed or uncontested relevant facts; and
(d)Consider the matters in s 60CC of the Act that are relevant and if possible thereafter make findings;
(e)Decide whether the presumption in s 61DA of the Act, with respect to equal shared parental responsibility being in the best interests of the child, applies; and
(f)If the presumption does apply decide whether it is rebutted because the application would not be in the child’s best interests.
The final orders provide that the parties have equal shared parental responsibility of the child. There was no challenge to that order at this interim hearing.
Material Relied Upon
The father relied upon the following material:-
·Response to Application in a Case filed 17 January 2018;
·Affidavit of the father filed 17 January 2018;
·Affidavit of the father filed 4 August 2017;
·Affidavit of the father filed 12 July 2017;
·Report of Ms D dated 13 November 2017;
·Report of Ms D dated 2 July 2016;
·Affidavit of Dr E filed 13 July 2016;
·Affidavit of Dr F filed 26 September 2017; and
·Affidavit of Ms G filed 28 November 2017.
The mother relied upon the following documents in support of her application:-
·Application in a Case filed 22 December 2017;
·Affidavit of the mother filed 4 August 2017;
·Affidavit of the mother filed 21 December 2017;
·Affidavit of Dr H filed 9 August 2017; and
·Report of Ms D dated 13 November 2017.
The Father’s Submissions
It was submitted on behalf of the father that the mother has sought to impede the father’s time with the child since his birth. To that end counsel for the father made detailed submissions as to the matter’s history.
Proceedings first commenced in this Court in late 2014, approximately two months after the child’s birth. The father did not spend time with the child until approximately January 2015 when the child was then aged approximately four months. It was submitted that the father has never seen or spent time with the child except pursuant to Court orders. There was no challenge to that contention.
The father submitted that from the outset of the proceedings it has been the mother’s case that there was a long history of domestic violence within her relationship with the father. The mother maintains that she suffers from Post-Traumatic Stress Disorder (PTSD) as a result of the alleged family violence perpetrated by the father. The father denies the allegations of family violence and challenges the mother’s contention that she suffers from PTSD.
In response to the mother’s allegations that she suffers from PTSD the father referred to and relied upon the report of the mother’s psychologist, Dr F annexed to Dr F’s affidavit filed 26 September 2017. The report of Dr F dated 5 August 2017 (Annexure GG-1 to her affidavit) notes that she first saw the mother in January 2016 and has had 15 therapy sessions with her. At page 7 of 8 of her affidavit Dr F describes the symptoms reported to her by the mother. Dr F concludes that the symptoms as described by the mother are consistent with PTSD. Counsel for the father sought to emphasise that that conclusion did not constitute a diagnosis of PTSD as had been asserted by the mother.
Counsel for the father also placed reliance upon the report of Dr E, consultant psychiatrist dated 9 May 2016, which is Annexure B to his affidavit filed 13 July 2016. At page 27 of 30 of that affidavit Dr E notes in relation to the mother that:-
[Dr E] spoke with [the mother’s] treating psychologist, who had also diagnosed post-traumatic stress disorder, just as a previous psychologist had but this examiner is of the opinion that [Ms Waddington’s] psychiatric symptoms do not meet criteria for post-traumatic stress disorder. Rather, a more likely diagnosis is adjustment disorder with anxiety. However, the distinction is academic. Simply, [Ms Waddington] does appear to be suffering from a psychiatric disorder, and in particular is suffering from anxiety symptoms which very much focus on [the father], consistent with her focus on him at the previous presentation to this examiner in 2015.
In the conclusions to his report at page 28 of 30, Dr E reports that:-
…if [the mother] is exaggerating or being untruthful about previous events, there would be a significant risk that she will continue to alienate [the child] from his father.
In the last paragraph of his report, Dr E notes that:-
…given that [the mother] is well supported by her treating psychologist, has successfully returned to work, and did again not demonstrate marked signs of psychiatric illness at interview, when not focussed on [the father], it is this examiner’s opinion that she is not at significant risk of an extreme psychiatric deterioration were the child to spend some unsupervised time with the [father]. It would be expected that on-going distress about such a situation would eventually lessen as she became more confident that [the father] was not intending to harm [the child].
The submission made on behalf of the father is that the mother has engaged in a course of conduct in order to alienate the child from his father and she uses her allegations of family violence and PTSD as a shield against the father spending more time with the child. The father relies upon the report of Dr E to support that contention. I am not in a position to make any findings with respect to the mother’s condition absent a testing of the evidence. Nonetheless, I accept that in presentation to both Dr F and Dr E she has reported a range of symptoms which do not seem to have abated notwithstanding the passage of time since the separation of the parties and her engagement in extensive counselling.
In support of his allegations that the mother does not support the father’s relationship with the child the father also points to the mother’s failure to execute documents necessary to effect a change of the child’s surname to include his own, in accordance with the final orders. It was as a result of her failure to execute those documents that the father caused his Initiating Application to be filed in July 2017. The mother’s response to that application was to seek a suspension of the operation of the final orders with respect to the father’s time with the child.
It was submitted by the father that the registrar of Birth Deaths and Marriages requires proof of identity of the mother in order for the child’s surname to be changed and that he was informed by the registrar’s office that they had not received any proof of identity. It was the mother’s position that this had been sent however at the date of the hearing before me the child’s surname had not been changed. On the day of the hearing before me the mother executed the necessary documents to enable the change in the child’s surname.
The father also relied upon the mother’s conduct in engaging a private investigator to observe the father’s time with the child. It is alleged that that investigator videoed the father playing with the child in his front yard. That allegation was not denied. It was submitted that Ms D, who has prepared two family reports in this matter, has viewed those videos and has raised no issue with their content which would support supervision of the father’s time with the child. Rather, D has confirmed in her report dated 13 November 2017 (“second report”) that supervised time is not indicated.
It was submitted on behalf of the father that the observations of Ms D at paragraph 28 of her second report support his view that the mother by her conduct is undermining his relationship with the child. Ms D there reports:
…[the mother] insists she never talks about the Father in any derogatory manner but she is concerned [the child] is restricted in talking or asking about her when she is with his Father. She contends she always prepares [the child] in a positive and encouraging manner as she readies him for time with his Father and she never displays ‘how upset I am’ in front of him. She says it is difficult for her to send him because ‘it’s so hard when he cries all the time’.
I accept that Ms D’s report of the mother’s statement as to her upset at the father spending time with the child and her difficulty in sending the child to his father raises issues as to the mother’s insight as to the impact of her behaviour on the child. Given his age, I accept that the child is likely aware of his mother’s reaction to him spending time with the father and that this has the potential to affect the child’s relationship with the father.
Significantly, in her second report Ms D notes the child’s reaction to spending time with his father during her observation session at paragraph 34 of her second report as follows:-
As [the child] entered the office and noticed his Father he went directly to him with his head down telling him ‘I can’t be here’. In a very adult-like manner and with one hand over his forehead and the other pointing to his Father, he firmly said, ‘I’ve told you three times, I’m over it’. He repeated this several times before his Father was able to distract him by pointing to the whiteboard which quickly caught [the child’s] interest. He immediately joined his Father happily writing together on the whiteboard. He relaxed quickly and complied when [the father] asked him for a hug.
At paragraph 49 of her report Ms D observes that the comments made by the child that “I can’t be here” are consistent with a child who has been exposed to parental conflict and has an understanding that he is not supported in being with his father. Having regard to those observations there is much force in the submissions made on behalf of the father with respect to his concerns as to the mother’s attitude to the child spending time with him and the level of her support of the father/child relationship.
The father also relies upon the evidence of Ms G, the contact centre supervisor who has prepared three reports in relation to her observations of the father’s time with the child, which are annexed to her affidavit filed 28 November 2017. It was submitted and I accept that the observations of Ms G confirm that the child’s experience of time with his father is positive, that the father engages the child in appropriate child-focussed play and that father and son share a warm and loving relationship.
Reliance was also placed on Ms G’s observation of the child at page 2 of her report dated 11 October 2017 (Annexure CT2 of her affidavit). There Ms G reports that:-
…[the child] has also reported on two separate occasions, information to suggest that [the mother] may not be encouraging him to spend time with [the father]. On the 19th of August 2017 during a conversation with [the father’s] partner, [Ms J] and again on 16 September 2017, when the child had a discussion with [C Contact Centre] worker [Ms K], it seemed [the child] had formed a view that [the mother] did not support the father-child relationship.
Ms G’s report dated 11 October 2017 also notes at page 2 that she had suggested to the father that he modify what she described as a “firm, disciplinary approach” which she regarded may have lacked insight into the child’s emotional and developmental needs. In that report Ms G reported that the father agreed to modify his approach and Ms G noted in her report dated 26 November 2017 (Annexure CT3 of her affidavit) that the father has worked on modifying his parenting approach, It was submitted that that evidence was supportive of the father’s open-mindedness to accept and embrace the recommendations of experts as to his parenting of the child.
It was submitted that the father has exhibited a strong commitment to maintaining his relationship with the child in the face of significant opposition from the mother. Between July and November 2017 the father has expended a total in excess of $11,000 on supervision of his time with the child (Exhibit F1). I accept that submission.
It was submitted that having regard to the evidence of D and Ms G there is no basis for supervision of the father’s time to be on-going.
Having regard to all of those matters it was submitted that the mother’s application to review the orders of the Senior Registrar should be dismissed.
The Mother’s Submissions
The mother seeks orders in the terms of her Application in a Case filed 22 December 2017, or alternatively that the father spend time with the child in accordance with the final orders. The effect of the mother’s application is that she seeks that supervision of the father’s time with the child continue until 1 April 2018 and thereafter the father’s time be unsupervised. She makes no proposals as to the father spending overnight time with the child.
The basis for that position is that the mother perceives the child to be at risk in the father’s care. In her affidavit filed 4 August 2017 the mother deposes as to her observations of the child following the commencement of the father’s unsupervised time with him, which occurred in January 2017. The mother alleges that the child commenced exhibiting separation anxiety, his behaviour worsened and he became aggressive and commenced using vulgar language. Further, she deposes that the child became more and more distressed following his return from the father’s care. The mother lists her concerns as to the child’s behaviour at paragraph 22 of that affidavit. There she also alleges that the child told her that the father had “smacked” him.
The mother places reliance upon the report of Dr E regarding the father annexed to Dr E’s affidavit filed 13 July 2016. At page 14 of 30 of that affidavit, Dr E states:-
…This examiner was of the opinion that in the case of [the father’s] version of events being accurate, there was no evidence to suggest that ongoing care by [the father] of his son was contraindicated for psychiatric reasons. Conversely, if the information provided by [the mother] and her family was deemed to be accurate, it would necessarily follow that [the father] had suffered from either a personality disorder or significant erratic and unpredictable personality traits, which would most likely impact significantly on the future care of his son. In that scenario, this examiner’s opinion was that [the father] would require further counselling, and that it would not be appropriate at that point in time for him to spend unsupervised time with his son.
The mother also placed heavy reliance upon the evaluation by Ms D in her second report and in particular paragraph 62 of that report where she stated:-
Increased or overnight time for [the child] cannot be considered at this stage and in the current circumstances. [The child] requires greater consistency in his care and routines need to be mirrored as much as possible in the father’s household. This requires among other things, the cooperation of [the mother] in the first instance to update [the father] of [the child’s] changing needs and routine.
The Independent Children’s Lawyer Submissions
Counsel for the Independent Children’s Lawyer confirmed that the Independent Children’s Lawyer sought that the orders of Senior Registrar FitzGibbon continue.
In support of that position counsel for the Independent Children’s Lawyer noted that the parties had commenced engagement with Ms L for the purposes of therapeutic counselling as had been envisaged both in the final orders (paragraphs 5 and 6) and in the orders of Senior Registrar FitzGibbon (paragraphs 2 and 3).
Counsel for the Independent Children’s Lawyer noted that the mother took issue with the manner in which the therapeutic counselling should occur, expressing reluctance to engage in joint sessions with the counsellor and the father. He also observed that seemingly there had been little progress in the mother’s psychological state notwithstanding the fact that she had been engaged in therapy with her psychologist, Dr F since January 2016. In the circumstances, the Independent Children’s Lawyer was of the view that the time had come for the father’s time with the child to be increased in accordance with the orders of the Senior Registrar.
It was submitted on behalf of the Independent Children’s Lawyer that the therapy contemplated in both the final orders and in the orders of Senior Registrar FitzGibbon was vital if the family was to progress and support the child’s relationship with both of his parents. To her credit, the mother indicated through her counsel that she was prepared to engage and work with the nominated therapist, Ms L as contemplated in the orders made by consent on 28 November 2017.
Counsel for the Independent Children’s Lawyer noted the competing positions of the parties, that is the allegations that the father engages in anti-social behaviour on the one hand and the issues raised as to the mother’s anxieties and the impact of those anxieties on her ability to support the father’s relationship with the child. Given the mother’s long-term engagement in counselling and the parties’ engagement with Ms L, the Independent Children’s Lawyer supported the removal of supervision and the extension of the father’s time to include overnight time.
What is in the child’s best interests?
In determining the parties’ competing interim applications I must have regard to the child’s best interests. The determination of what is in his best interests requires that I consider the provisions of s 60CC of the Act.
The parties submissions focussed on the primary considerations set out in s 60CC(2) of the Act; that is the benefit to the child of having a meaningful relationship with both parents and the need to protect him from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The need to protect the child is given greater weight then the benefit of the child having a meaningful relationship with both parents.
There is no challenge to the proposition that the child will benefit from having a meaningful relationship with both of his parents.
The question at this interim hearing revolves around the mother’s allegations that the child is at risk in his father’s care. These are matters that were raised at the final hearing which commenced in July 2016 and culminated in the final orders. Those allegations have again been raised in the current proceedings.
The mother concedes that it is appropriate and in the child’s best interests that the father commence having unsupervised time with the child as from 1 April 2018. No submission was made as to why unsupervised time should commence on that date. Further, the mother makes no proposal as to an appropriate date for the commencement of the child spending overnight time with the father. Seemingly, it is the mother’s position that the child is not at risk of spending unsupervised day time with the father, yet is exposed to risk if that time is extended to include overnight time. In my view there are inherent contradictions and inconsistencies in the mother’s proposal.
The evidence of the independent experts does not support the mother’s contention that the father’s time with the child be supervised. Indeed, the mother concedes that the time should move to unsupervised within approximately two months.
The final orders provide for a gradual introduction to and extension of the father’s time with the child, with that time being supervised until January 2017. The father agreed to a resumption of supervision to ensure a continuation of his time for a period of approximately four months between July and November 2017. The detailed reports of the contact supervisor Ms G annexed to her affidavit filed 28 November 2017 indicate that the child enjoys his time with his father, has a warm and loving relationship with his father and that his father engages with him in a child-focussed and loving manner. It is evident from those reports that the father is supported by his own parents in the development of his relationship with the child. At various periods during the father’s time with the child the supervisor has raised with the father issues as to the manner in which he engages with the child and the father has responded to the recommendations and advice of the supervisor in an appropriate and positive fashion.
Those observations are echoed by Ms D in her second report. At paragraph 35 of that report Ms D notes that the child happily played with the father during observation.
Further, at paragraph 36 of her second report Ms D observed the father to be attentive and ensured that the child had food and drink. She notes that:-
…[The father] took opportunities to teach [the child] as they played, he appropriately praised him for his efforts, reinforced good behaviour and guided him in play. He allowed [the child] to dictate play and appropriately engaged in fantasy play with him. [The child] displayed good focus and concentration.
At paragraph 37 of her second report she notes that the father maintained appropriate conversation with the child. At the conclusion of the session she observed the child give his father a warm hug and kiss goodbye before he happily left and returned to the mother.
In her evaluation of the family Ms D notes at paragraph 44 of her second report that:-
[The child] is assessed to be a bright child, confident and assertive and developing beyond his developmental milestones. He impresses as a child who has great potential. He has trust in his caregivers. It is evident he has a good relationship with each parent and is clearly familiar and comfortable with his Father with whom he readily engages in a confident and playful manner. The supervision report suggests he is a much-loved child in the father’s household…
Ms D raises concerns as to the impact of the inability of the parents to communicate. The consequence of that failure in the parents is that the child is deprived of consistent and reliable parenting in each household which she assesses likely contributes to the unsettled presentation of the child upon return to his mother.
Ms D observes that the vulgar language used by the child is likely a learned behaviour and she notes that each party attributes that learned behaviour to the other. Given that the child does not attend child care and lives in households largely made up of adults she assesses that the child’s language is learnt from one or both of the parties’ households.
As to the issue of unsettled behaviour in the mother’s household, at paragraph 48 of her report Ms D postulates that one hypothesis for the behaviour is that the child is sensitive to and/or exposed to his mother’s anxiety about unsupervised time to which she has been consistently opposed.
As referred to above, Ms D noted that the comments made by the child in her presence, such as “I can’t be here” are consistent with a child who has been exposed to parental conflict and has an understanding that he is not supported in being with his father. Those observations of the child’s behaviour are consistent with behaviour reported by Ms G referred to above. Given the acrimonious relationship between the parents Ms D urges the parties to cease the conflict and notes that a failure to do so may well compromise the child’s future well-being and his potential will be seriously affected in negative ways. She urges the parents to genuinely engage in the therapeutic process to address their relational dynamic and communication.
At the time her report was prepared in November 2017 D noted that given the state of the parental relationship and communication, increased time or overnight time for the child could not be considered at this stage and in the current circumstances. The circumstances to which she referred were the “toxic” relationship between the parents, coupled with their failure to engage in therapeutic processes as had previously been ordered.
Three months have elapsed since Ms D’s report and as I have noted, the parties have now taken steps to address those issues; since January 2018 they have been engaged with Ms L. Further, the parties have taken steps to address their communication issues and have shown a commitment to using the MyMob parenting application to communicate in relation to the child’s routine and needs.
Given the positive steps taken by the parents, I am satisfied that with continued engagement with those resources, the child’s time with his father should progress such that he commence spending overnight time with his father, commencing 24 March 2018 when he will be aged three and a half. Initially that time should be on an alternate weekend basis from 10.00am Saturday to 12 noon Sunday. After four such occasions that time should extend to alternate weekends from 10.00am Saturday to 5.00pm Sunday.
That time should be supported by changeovers continuing to occur at the C Contact Centre.
Given the parties engagement with Ms L I do not propose to make any orders regarding their attendance at parenting courses or the like. No doubt Ms L will inform the parties during the therapeutic counselling if she considers that they would benefit from attendance at such courses.
There was no challenge to the balance of the orders made by the Senior Registrar. I am satisfied having regard to the evidence before the Court, particularly the evidence of Ms D, that it is appropriate that those orders continue. Therefore I make orders as follows:-
(1)That until further order the child X born … 2014 spend time with the father as follows:-
(a) In accordance with Order 4(e) of the Orders made 20 July 2016; and
(b) As from 24 March 2018 each alternate weekend from 10.00am on Saturday until 12 noon on Sunday in addition to the time in (a); and
(c) As from 19 May 2018 each alternate weekend from 10.00am Saturday until 5.00pm Sunday in addition to the time in (a).
(2)That pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
(3)That the mother’s Application in a Case filed 22 December 20127 and the father’s Response to Application in a Case filed 17 January 2018 be otherwise dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 27 February 2018.
Associate:
Date: 27 February 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Procedural Fairness
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