LAMBERT & ADAMSON
[2009] FMCAfam 1116
•30 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAMBERT & ADAMSON | [2011] FMCAfam 1116 |
| FAMILY LAW – Parenting – interim hearing – supervised time sought by both parent of other parent – alcohol and family violence issues – recovery order sought by mother – mother had no contact with children for three months – appointment of an independent children’s lawyer. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 64B, 65DAA |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS LAMBERT |
| Respondent: | MR ADAMSON |
| File Number: | PAC 322 of 2009 |
| Judgment of: | Monahan FM |
| Hearing date: | 30 March 2011 |
| Date of Last Submission: | 30 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 30 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Mulley Roth Solicitors |
| Counsel for the Respondent: | Not applicable |
| Solicitors for the Respondent: | Legal Aid NSW |
ORDERS
All extant applications be adjourned to this Court on 27 April 2011 at 9:30am for mention (“the mention hearing”).
Pursuant to s.11F of the Family Law Act 1975 (“the Act”), the parties attend a Child Dispute Conference with a Family Consultant in this Registry on 30 March 2011 at 10:00am and, pursuant to s.11C of the Act, such conference be reportable.
Pursuant to s.68L(2) of the Family Law Act1975 (“the Act”), X, born (omitted) 2007, and Y, born (omitted) 2009 (“the children”), be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation and:
(a)Upon appointment, the Independent Children’s Lawyer file a Notice of Address for Service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; and
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
The Applicant make, file and serve all further affidavit material upon which she wishes to rely by not later than 4:00pm on 7 April 2011.
The Respondent make, file and serve all further affidavit material upon which he wishes to rely by not later than 4:00pm on 14 April 2011.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The children live with the Respondent.
The children spend time with the Applicant under the supervision of a supervisor agreed upon by the parties and, failing such agreement, by a professional supervisor arranged and paid for by the Respondent, for a maximum of three (3) periods of up to two (2) hours each or a maximum cost of $300.00 per supervised session.
Both parties do all things necessary to enrol with SYDNEY CHILDREN”S CONTACT SERVICE, Sydney (“the Centre”), so that the Applicant may spend time with the children at the Centre.
Upon the Centre facilitating the Applicant spending time with children at the Centre, and the Applicant spend time with the children at such times and dates as advised by the Centre.
AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to obtain the preliminary views of the Independent Children’s Lawyer, including on the issue of any further order for the children to spend supervised time with the Applicant, and to consider whether the matter would benefit from a further interim hearing.
(B)The Applicant is seeking the appointment of an expert under Part 15 of the Federal Magistrates Court Rules 2001 and this matter will be considered at the mention hearing with the input of the Independent Children’s Lawyer.
(C)The intention in paragraph seven (7) herein is for the supervised time to occur prior to the mention hearing, if possible, and in that event for a short report to be made available to the parties by the professional supervisor, with such report to be paid for by the Respondent.
(D)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Lambert & Adamson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 322 of 2009
| MS LAMBERT |
Applicant
And
| MR ADAMSON |
Respondent
REASONS FOR JUDGMENT
Introduction
The reasons for this decision are being delivered orally and may be settled when time allows, or otherwise upon request.
This is an application by MS LAMBERT (“the mother”) against MR ADAMSON (“the father”), seeking various parenting orders in respect of the two children of the relationship, X, born on (omitted) 2007 (“X”), and Y, born on (omitted) 2009 (“Y”) (or collectively “the children”).
More specifically, in terms of final orders, the mother is seeking orders that would achieve the following outcome:
·the mother have sole parental responsibility for the children;
·the children live with the mother and that spend time with the father supervised at an authorised contact centre;
·the children spend special occasions with each party.
In terms of interim orders, the mother today seeks a recovery order and a location order in respect of the father.
Given the father’s attendance today and the filing of his Response today, the Court will clearly not be required to consider any issues of a location order, as the father is now on the record. In respect of the recovery order, it appears that the parties are actually disputing where the children should live and under what circumstances they should spend time with the other party pending the resolution of their dispute on an interim and/or final basis.
The mother’s Initiating Application is supported by her affidavit sworn on 27 February 2011 and filed on 4 March 2011, and she is legally represented by Mr Roth today.
The father’s Response opposes the majority of the orders sought by the mother and in turn is also seeking final orders that would achieve the following outcome:
·the father have sole parental responsibility for the children;
·the children live with the father; and
·the children spend time with the mother, certainly in the interim, at a supervised contact centre or, given submissions, a suitable alternative;
·various restraints be placed upon the mother; and
·for the parties to attend a post-separation parenting course.
The father’s Response is supported by his affidavit sworn and filed today, which I acknowledge primarily relates to the issue of the recovery order sought by the mother.
Child Dispute Conference
Pursuant to Orders made earlier today, the parties attended the duty Child Dispute Conference with Ms F, family consultant, today (“the CDC”). Unfortunately, the parties were unable to resolve their dispute at the CDC.”
Ms F indicated that no agreement was reached and that the “Issues remaining in dispute” concerned parental responsibility, with whom the children will live and the arrangements for the children to spend time with the non-residential parent.
Ms F identified the following “Issues impeding resolution”:
“High level of conflict between the parents
Poor communication between the parents
Allegations of family violence from both parties:
The mother alleges that there has been family violence since the beginning of their relationship in the form of physical violence and anger management issues on the part of the father
The father alleges that the mother has made threats of self harm and threats to harm the children in December 2010 and that she smacks the older child.”
Ms F then states:
“Irrespective of whose allegations of family violence are accepted, it is evident that the children have been exposed to an ongoing level of family violence and instability that is unacceptable for children of any age and especially for such young children
Both parents claim to be the primary caregiver and further information and clarity is needed
High level of mistrust between the mother and the father and his family
The father alleges that the mother is unable to care for both children together and the mother denies this
The mother alleges that the father does not have parenting skills and is not the main caregiver in his home but that this is provided by his mother for the children.”
Under the heading “Concerns” Ms F states the following:
“Urgent Interim decision is needed regarding the care of the children
The young age of the children, 3 and 1.5 years of age, and the implications for their attachment to significant carers
Ongoing dispute between the parents and the consequent instability of care for the children
The children being removed from the mother December 23rd 2010 and have not seen the mother for three months and similar previous incidents of such moves.”
As to “Additional information” Ms F states:
“During interview the mother appeared more willing to negotiate, however, the father raised concerns about the children’s safety and so was unwilling to compromise
The mother has sought counselling for herself as a result of the children being removed by the father and not having seen them for three months
The mother and children have been accepted into the Brighter Futures program for two years from November 2010, however, this has not begun as the children have not been with her.”
Ms F also notes, of course, that there are significant allegations of family violence in this matter, evident from the existence of an Apprehended Violence Order (“AVO”), but indicated that she would not be making any notification of child abuse or risk of abuse.
As to the specific recommendations, Ms F saw no benefit in a further appointment being made for mediation between the parties until a judicial decision is made, presumably in respect of these interim children’s issues. In the long term, Ms F thought a family report should be prepared, and certainly made a recommendation that an Independent Children’s Lawyer be appointed.
Background
The parties appear to have commenced cohabitation in 2006 or thereabouts and separated on several occasions after that. The evidence is yet to be tested on those issues. What is clear, of course, is that the parties have two children, X, now age three and a half or nearly three and a half, and Y, aged one and a half.
I note that the mother commenced parenting proceedings in 2009 by way of her Initiating Application filed on 27 January 2009 which was returnable before Dunkley FM on 4 February 2009. That application sought orders for the return of X from the father to the mother. When the matter came before his Honour, the father appeared in person, however, the mother did not appear. Given that the mother was not present to prosecute her application, his Honour determined to dismiss the application.
I note that various documents have been tendered by both parties in respect of these proceedings. An immunisation statement which would tend to indicate that X was with the mother in November 2008. The mother has also produced an income statement from Centrelink in her name from February 2011. That said, it is also clear from the evidence that the children have been in the father’s care since late December 2010 and, it would appear, had been in his care at some other times prior to that. This is evidenced by the documents submitted from the New South Wales Department of Community Services (“DoCS”) dated 5 January 2010.
There are allegations and counter-allegations by both parties, and no doubt the matter will be assisted by various subpoenaed material to ascertain the truth or otherwise of some of the allegations that have been placed before the Court today.
The issue, of course, for the Court to determine today is whether the children should remain in the care of the father or, in the alternative, whether they should return to the care of the mother. As stated, it is clear that the children have been in the father’s care for various reasons since December 2010.
In addition, both parties do not trust the other in terms of the children spending time with them on an unsupervised basis. Whilst that is not an unusual feature of some cases before the Court, it is certainly disturbing that both parties believe that the children need the protection of supervision whilst in the care of the other party.
Proposals
The mother proposes that the father spend time with the children supervised in a contact centre or, alternatively, given the demands upon contact centres and the likely reality that such a place will not be obtained for some months to come, the possibility of time being supervised by either the maternal grandfather or the paternal grandparents.
The father proposes, similarly, that the mother’s time with the children occur at a contact centre, though he concedes that it would take some time, if such an order were made, for that to be accommodated. In the alternative, and subject to a suitable supervisor being agreed between the parties, (perhaps with the assistance of an Independent Children’s Lawyer), that such time may be supervised by what I will describe as a “professionally accredited or recognised supervisor”. The father proposes he pay for this service on three occasions of no more than two hours each with a maximum cost of $300.00 on each occasion, in other words, a total cost of $900.00. At this point, I would note that the father’s evidence indicates that he resides with the paternal grandparents, and the children, of course, are currently residing with him at that residence.
This decision will be limited to the issue of where the children will live in the interim and under what circumstances they will spend time with the party that they are not otherwise living with.
Law and discussion
All parenting proceedings are governed by Part VII of the Family Law Act 1975 (“the Act”). Parenting orders are defined in s.64B of the Act and deal with issues such as where a child is to live, time a child is to spend with another person and otherwise the allocation of parental responsibility.
The guiding principle found in s.60CA of the Act states:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
Section 60CA to s.60CC of the Act provides the Court with structured discretion in terms of factors that must be considered when determining the best interests of a child.
In the case of Goode & Goode (2006) FLC 93-286 (“Goode”) the Full Court made it clear that in approaching interim decisions and interim orders that the legislative pathway must be followed. In other words the provisions of the Act, post the 2006 shared parenting amendments, must be followed.
There is considerable distrust, it would appear, between the parties, and clearly the evidence of the parties today is not being tested by cross-examination, nor is that evidence supported by much in the way of documentation. Clearly, a final hearing is the appropriate venue for such testing of evidence.
The issue of parental responsibility has also been raised by both parties, indeed, both are seeking sole parental responsibility for the children. The effect of making such an order is that that party will make the major decisions for the children without the input of the other parent. That is a serious order to make.
That said, if a parenting order is made today, I am required to consider the presumption in s.61DA of the Act, that is, that it would be in the best interests of the children for the parents to have equal shared parental responsibility. However, there is an exception in s.61DA(3) of the Act. That exception relates to interim orders where it is not appropriate for the presumption to be applied. There are also exceptions based on allegations of family violence and where I have formed the view it is not in the best interests of the children.
Given that this is an interim hearing and that this matter will soon have the benefit of an Independent Children’s Lawyer, I have formed the view that it is not appropriate for the Court to determine the issue of parental responsibility now. I do not propose to do so relying on s.61DA(3) of the Act. Consequently, an examination of s.65DAA of the Act is not triggered in respect of the children spending equal time or substantial and significant time with the other parent.
Given the above decision, we return to with whom the children should live in the interim and what the spend time arrangement should be in respect of the children and the other party and consideration of the best interests principle.
Primary considerations: s.60CC(2)
Under s.60CC(2)(a) the Court is required to consider the benefit of a child having a “meaningful relationship” with both parties.
At this point let me note that meaningful does not mean equal, but it clearly signifies that both parties should be involved with Y and consequently signifies an expectation of time to be spent. It is the right of a child, not the parent, to spend time with their parents and that right extends to their extended family, provided such is in that child’s best interests. Clearly, the relevant provision will be considered in far more detail at any final hearing in light of the evidence.
That said, balanced against the situation of promoting a meaningful relationship, I am also required to consider s.60CC(2)(b) of the Act, which requires me to consider the need to protect the children from “physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence”. Regrettably, this is a live issue in this case. Both parents make allegations of a disturbing nature in respect of the other and also in respect of the children.
Whilst it would be in the best interests of the children prima facie to have a meaningful relationship with both of the parties, clearly the intention of the legislation is for that aspect to be balanced against protecting the children from any physical or psychological harm. Clearly, the problem with interim hearings is that there needs to be a testing of the evidence, and that testing has yet to occur. That said, there are issues here warranting investigation, and clearly the Court will have to tread cautiously in the interim arrangements that will be made today. There is an AVO in place and there are mutual allegations made regarding the behaviour of the other party. There are also circumstances where there has been one parent absent, for various reasons, from spending time with the children.
There are also allegations in relation to mental health issues and the issue of the children spending time with a party in a supervised setting is also an issue before me this afternoon. Can I say that contact centres play a crucial role in facilitating children spending time with a parent in circumstances where there is a risk of harm proven, or yet to be determined, in relation to a child. Contact centres are subject to competing demands on the public purse with the consequence that unless the parties can afford a private alternative, they may have to wait considerable lengths of time to secure a place or be prepared to travel great distances to obtain one. That said, contact centres also provide an opportunity for supervision to demonstrate to the Court that there are no reasonable fears in terms of safety for a child. To that extent, there can be an empowering process that assists the party who has been required to spend time in under supervision.
Additional considerations: s.60CC(3)
Somewhat difficult, of course, would be “the views of the child” being so young, but that is something the family report and the Independent Children’s Lawyer may be able to assist the Court with.
There are also issues about “the nature of the relationship between each of the children’s parents”, and “the parents’ willingness to cooperate and facilitate a close and continuing relationship”. Again, we have allegation and counter-allegation currently before the Court.
One thing that I have clearly indicated to the parties today is that someone is not telling me the truth, or alternatively, both parties believe in a truth that cannot be the truth.
I also am required to consider issues of their “capacity to provide for the children’s needs” and the extent they have a history of doing so and the like.
I am also required to consider something very important this afternoon, and that is the “likely effect of any changes in the children’s circumstances”. It is clear that there needs to be change here as this situation cannot continue. We cannot have children being denied the opportunity to spend meaningful time with a parent unless that is an appropriate order to make.
Conclusion
The Court has now considered the respective applications of the parties this afternoon in light of the available evidence and the relevant statutory provisions.
I am satisfied that the matter would benefit from the appointment of an Independent Children’s Lawyer, and an order to that effect will be made this afternoon.
I am also satisfied that the father in particular needs to file additional material outlining, for example, the current circumstances, including the residential circumstances and the like of the children. That said, I would like to give the mother a further opportunity to file further material for the benefit of not just the Court but also for the Independent Children’s Lawyer. Consequently, there will be a timetable this afternoon for the filing of further affidavit material for both parties.
As to the interim arrangements, let me indicate that I propose bringing the matter back at the first available opportunity with the input of the ICL. Given that the appointment by NSW Legal Aid will take some weeks and, no doubt, the need for the ICL to file various subpoenas and the like, it is difficult to provide an appropriate adjournment time. That said, given judicial constraints, this matter will return on the first available date that in Sydney for mention only on 27 April 2011 with the input of the ICL. On that date, I will consider whether the matter may benefit from a further interim hearing on a subsequent date.
As to the live issue, I have formed a view that in the interim the children should remain living with the father.
As to the spend time arrangements with the mother, until these issues can be tested, I have also formed the view that the mother’s time should be supervised by an agreed supervisor, or failing agreement, the default position will be that such time be supervised by a professionally accredited or recognised supervisor engaged by the father, at his cost, on not less than three occasions for three hours up to a maximum cost of $300.00 each occasion.
As indicated, I would encourage the parties to have some discussions in the intervening period about a possible alternative to paid supervised time. I will make orders today in addition for the parties to complete all necessary application forms with the Sydney Children’s Contact Service. The relevant order will require the parties to sign and lodge all necessary documents and for the parties to attend all necessary intake sessions. Though unlikely to occur before the matter returns, the children spend time with the mother at times as advised by the contact centre.
I do not propose making any other additional orders today, but encourage the parties to have some discussions between now and when the matter returns. Clearly, the order for the ICL will require the parties to provide appropriate documentation and the like to the ICL once appointed.
I will also note today that the mother is seeking an expert report be prepared in this matter. That issue may be considered at the mention hearing with the benefit of the ICL or on a subsequent date, as is appropriate.
There will now be orders and notations to reflect this decision.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Monahan FM.
Date: 27 October 2011
0