Layne and Headman (No 2)

[2019] FamCA 1025

FAMILY COURT OF AUSTRALIA

LAYNE & HEADMAN (NO. 2) [2019] FamCA 1025

FAMILY LAW – CHILDREN – where the mother’s two separate parenting proceedings are heard together – where the children have not had any physical contact with the mother for over 12 months and nearly two years respectively – where the two children form part of a sibship group of six children – where the mother has had significant involvement with the Department of Child Safety, Youth and Women – orders made for the children to spend time with the mother supervised by paternal grandparents

Family Law Act 1975 (Cth)

Headman & Reagon [2019] FamCA 852
Layne & Headman [2019] FamCA 853

APPLICANT: Mr Layne

RESPONDENT: Ms Headman

FILE NUMBER: BRC 9787 of 2015

DATE DELIVERED: 27 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 27 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Steadfast Solicitors

SOLICITOR FOR THE RESPONDENT: Hodgson Lawyers

INDEPENDENT CHILDREN’S LAWYER: Mr J Blayney
Legal Aid Queensland

Orders

1. That the child, V born … 2012 live with her father, Mr Layne.

2. That the child, U born … 2009 live with her father, Mr Reagon.

3. That V and U spend time with their mother, Ms Headman on a supervised basis as agreed between their mother and their respective fathers in writing from time to time, and failing agreement, as follows:

   (a)       From 10.00am to 12 noon on Saturday, 7 December 2019;

   (b)       From 10.00am to 2.00pm on Saturday, 28 December 2019;

   (c)       From 10.00am to 2.00pm on Saturday, 18 January 2020;

   (d)       From 10.00am to 2.00pm on Saturday, 8 February 2020; and

   (e)       From 10.00am to 2.00pm on Saturday, 29 February 2020.

4. That for the purposes of the time between V and U and their mother provided for above, changeovers shall occur at Hungry Jacks, J Town Shopping Centre,  K Street, L City or such other venue as may be agreed in writing between the parties from time to time.

5. That the time between V and U and their mother provided for above must be supervised by the maternal grandmother, Ms B Headman or the maternal grandfather, Mr A Headman or such other responsible adult supervisor as may be agreed in writing by the parties and approved by the Independent Children’s Lawyer from time to time.

6. That V have telephone, Skype or FaceTime communication with the mother every Wednesday commencing 11 December 2019 between 5.30pm and 6.00pm, with V’s father, Mr Layne to initiate the call.

7. That U have telephone, Skype or FaceTime communication with the mother every Tuesday commencing 10 December 2019 between 5.30pm and 6.00pm, with U’s father, Mr Reagon to initiate the call.

8. That the parties, Mr Layne, Mr Reagon and Ms Headman shall not discuss these proceedings with V or U or denigrate one another or each other’s households or lifestyles in the presence or hearing of V or U.

9. That the Independent Children’s Lawyer has liberty to apply in the event of urgent issues arising.

10. That proceedings BRC6460/2016 and BRC9787/2015 be heard and travel together.

11. That the parties file and serve by no later than 4.00pm on 4 March 2020 a short Affidavit setting out:

    (a)how the arrangements ordered herein have progressed from their perspective;

    (b)their proposals for further interim orders for the next six (6) months;

12. That a copy of the letters provided to the Court by the Department of Child Safety Youth and Women dated 26 November 2019 and marked as Exhibit 1 be provided to the parties.

13. That these proceedings be adjourned for Case Management Hearing at 9.30am on 11 March 2020 in the Family Court of Australia at Brisbane.

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 Layne & Headman 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 BRISBANE

FILE NUMBER: BRC 9787 of 2015

Mr Layne

Applicant

And

Ms Headman

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(settled from oral reasons delivered)

Introduction

1. I propose to make some orders.  Let me give some reasons why I – the general thrust of why – it will be apparent from the discussion I have had today on the earlier occasion.  The mother of the two children who I am dealing with today, V, who will be turning nine in late December 2019, and U, who is now 10 years of age, are two children of a   group of six children.

2. The earlier discussion I had with the parties was to acknowledge my concern that the system has so poorly met the needs of these two children that it seems not in dispute that V has had no physical time with her mother for over 12 months and that U’s time with the mother ceased in December 2017, nearly two years ago.  In my view, that situation needed to be remedied immediately.  I appreciate the efforts made by the newly appointed solicitor for the mother, Mr Morrison, and the lawyers who appear for and had been retained by the respective fathers, Mr Reagon and Mr Layne, in putting together some material urgently.  In my view, that is a reflection that they also share my concern that there should be some arrangement made for time.

3. The Independent Children’s Lawyer (“ICL”), Mr Blayney, has also provided me with a detailed case outline and a representative of the Department of Child Safety, Youth and Women (“the Department”) is here today to provide background, the Department having, identified in letters dated 26 November 2019 to the Court, the reasons why they are not taking up the invitation to intervene offered under Section 91B of the Family Law Act 1975 (“the Act”).  In accordance with my usual practice, the letters from the Department will be marked as Exhibit 1 today and unless there is an objection, copies of those letters will be provided to all the parties.

4. In many ways, the orders that I can make today have some restrictions, which include:

   a)although I have a firm view that it is in the interests of the children that they have time with the mother, the absence of time for such a period makes it difficult to be certain as to how they may react to returning to a relationship with their mother.  Certainly it does not seem in dispute that when time was supervised by a contact centre, the children were enthusiastic about and enjoyed the time with the mother;

   b)as a result of the efforts of the ICL, the Legal Aid office has agreed to fund a psychiatric assessment of the mother, something which I alluded to on the last occasion and which the Court significantly supports.  I do not choose to say anything further about that – it is contained within earlier Reasons published (see Headman & Reagon [2019] FamCA 852 and Layne & Headman [2019] FamCA 853). Thankfully, Dr M, a well-known Consultant Psychiatrist, has been able to make an appointment to consult and assess the mother on 30 January 2020, which the mother has agreed to attend;

   c)Although there was, in the material filed and which I have read, a reluctance by the fathers of U and V to support one of or either of the maternal grandparents to supervise, as a result of discussions today, both the representatives of those individual fathers have indicated their clients will agree to a supervision by the maternal grandparents.  That is the position adopted by the ICL and in my view, although, of course, if the history is taken at its worst, the mother has demonstrated in the past some quite erratic behaviour, I am satisfied that the risks of supervision by a grandparent of these children, who are currently as a result of the Department’s decision, the primary carers of the baby Z – are minimal.  I do not accept on current evidence that they would find it difficult to step in if the interests of U and V were put at risk by some conduct of the mother.  Certainly I regard the prospect of the mother using a supervised visit to escape, remove the children and go into hiding, as unlikely, notwithstanding some earlier issues some years ago with W.  I say that because to so do would, of course, mean that the mother would put at risk a relationship with the other four children and most likely she would be found, as is the practice in Australia, and put at risk a long term relationship with V and U.  I do not believe the mother would take that risk;

   d)there are practical considerations that need to be considered.  The mother lives in N Town.  The supervisors who are proposed live at D Town.  As a result, the mother’s proposal was that changeover occur at Hungry Jack’s at J Town near L City.  Both of the fathers and the ICL support that as a changeover location.  It is not expected that the time which I order today all occur at Hungry Jack’s at J Town, but I am satisfied that J Town is close enough to L City such that opportunities to spend time with the children in L City, where there are many opportunities such as shopping centres and parks and the like, can easily occur.  It is, in my view, a credit to the fathers, who do have and have formed some relationship in respect of supporting their individual daughter’s sibship relation with the other child, that they work in some tandem way and get both U and V together to J Town on a regular basis.  They say that that can be achieved once every three weeks.  The mother, not surprisingly, in view of her other routines with the other children, wants as much time as frequently as possible.  The practicalities of this occurring however need to be considered.  They are the practicalities so far as the children are concerned, who have, rightly or wrongly, had up to two years where they have not had significant interruption into their weekend time, spending time with the mother, if at all.  They would, no doubt, have developed other routines in those households.  I have taken into account that there is a cost factor involved in the children coming from their current residences in South-East Queensland to J Town on a regular basis and returning.  The mother is not in the position, it would seem, to make any contribution to their child support.  For those reasons, at this stage, I propose to adopt a routine of once every three weeks.  I will be inviting the ICL to prepare a minute of order consistent with these Reasons to be circulated quickly.

5. The next issue that arises is how long should the visits occur.  It is absolutely understandable that the mother would seek to have as much time as possible.  She ultimately, in her final application, seeks that all children live with her.  Bearing in mind, however, the absence of time, I propose to start at two hours and increase to four hours.  There will be two visits of two hours and thereafter the visits will be for four hours.  The visits should, I think, unless the parties otherwise agree, begin at 10.00am.  So the first visits will finish at 12.00pm.  After the first two visits they will then go to 2.00pm.  This allows the mother and the supervisor to enjoy a meal of some sort with the children, which is a very normal family thing to do.  Properly, neither of the fathers raise any concerns about Z, the baby, joining with the mother and seeing U and V.  That is quite a proper position.  Under the Department’s guidelines, Z would not be able to go unless a grandparent went anyway, because the mother’s time with the child is to be supervised.  There is no reason why I would not regard as appropriate that the visits be on a Saturday.

6. I raise two other significant issues which arise in this case, because of the timing and those are Christmas Day and V’s birthday in late December.  Again, the mother’s position that there be two visits, effectively, within a week on Boxing Day and then again in late December is quite understandable.  However, in my view, it is this year practical to find a date that may be between those two important life events, at least for V, and one of them at least for U, and on that basis 28 December 2019 will be a visit that will be ordered by the Court.  That will give the mother an opportunity to celebrate with present-giving or whatever is her tradition and time with the children for Christmas, whilst at the same time having a little early birthday celebration for V.

7. I would not propose to set out where the mother’s time supervised by one of her grandparents takes place, other than to say because the time restriction will mean that she has limited opportunity to travel far from J Town and probably not much further than L City, it would seem unlikely at a four hour visit that she would waste the time, precious as it is to her and the children, to travel to D Town, for example.  At this stage I am not prepared to consider overnight time until I have seen the psychiatric report of Dr M.  I understand that for children of this age overnight time with their mother, subject to the risks, should be on the horizon.

8. The matter comes back to me in early March 2020.  I expect then to have the report of Dr M.  I would expect there to be evidence from the mother and one of her parents – whichever one supervised or both of them if they have both supervised – indicating how the visits have gone and also from the fathers.  It only needs to be short.  The fathers, of course, will have an obligation to prepare their daughter for the visit.  They will, no doubt, hear how the visit went and they will be in a position to indicate how the children have coped from their perspective on return from the visit.  If, however, between now and the next return date in March 2020, an issue of very serious concern arises, then rather than the parties themselves filing an Application in a Case, the parties would be expected to advise the ICL and the ICL will have liberty to re-list the matter.

9. Clearly these two matters, which are being dealt with together, will need a trial at some stage because the current proposals for final orders are so starkly different.  There are however some significant issues which only time will clarify.  That includes the serious criminal charges against the father of X in relation to that infant’s injuries at a time when the mother was in a relationship with Mr F and also the decisions made by the Department and presumably supported – or maybe not – by the Children’s Court as to the care arrangements for X and Y.  It does not appear at this stage, on the evidence I have, that the Department are assessing the mother as a primary carer for any of the children the subject of care orders, but of course that situation may well change.  When those matter clarify, then the environment in which the Court is being asked to consider the primary application of change of residence will be known.  When it is likely that that situation is clarified, that would be the optimal time for a trial to take place.  The uncertainties are such at the moment that I cannot know when that will be, but hopefully some time during 2020.  I say that because one of the issues that still hangs over the mother in this case, even though she is a witness in the serious criminal charges being faced by a former partner, Mr F, although she has not been charged, is her understanding or involvement in that very serious injury to X.

10. I need an order that all parties are not to discuss these proceedings with or in the presence of children or make any denigrating remarks about the other parent or their household or lifestyle to or in the presence of the child.

11. I am going to direct the parties to file and serve by 4 March 2020 a short affidavit setting out:

    a)how the arrangements ordered today have progressed from their perspective; and

    b)proposals for further interim orders for the next six months.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 27 November 2019.

Associate:

Date:  3 February 2020