Lissa & Simu & Anor
[2020] FCCA 2700
•1 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LISSA & SIMU & ANOR | [2020] FCCA 2700 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – where child lives with maternal grandmother – spend time with arrangements with mother – where child has no relationship with biological father – where child’s biological father may be incarcerated – where parties are on a waitlist for child’s time with mother to be supervised by a contact centre – where child’s time with mother is supervised by a paid supervision service – whether child’s time with mother should continue with professional supervision or transition to/or be in tandem with supervision by maternal grandfather or paternal great-grandmother – best interests of the child. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61C, 61DA, 64B, 65D, 65DAA, 69ZL. |
| Applicant: | MS LISSA |
| First Respondent: | MR SIMU |
| Second Respondent: | MS MORRIS |
| File Number: | SYC 8434 of 2019 |
| Judgment of: | Judge Monahan |
| Hearing date: | 7 September 2020 |
| Date of Last Submission: | 7 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 1 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Giacomo |
| Solicitors for the Applicant: | Ms Purcell of Purcell Lawyers |
| Solicitors for the Respondent: | Ms Dunkley of Mahony Family Lawyers |
| Solicitors for the Independent Children’s Lawyer: | Mr Nasti of S P Nasti & Co Solicitors |
ORDERS
THE COURT ORDERS THAT:
Paragraph 3 of the Orders made 23 July 2020 be discharged.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
X born in 2015 (“X”) spend time with the mother as agreed between the maternal grandmother in writing, and failing agreement, such time occur pursuant to these Orders.
The mother and the maternal grandmother do all acts and things to maintain their placement with B Contact Centre at Suburb D (“the Contact Centre”) and the child spend supervised time with the mother at such times as may be offered by the Contact Centre.
In addition to any time to be spent pursuant to paragraph 3 herein, the child spend time with mother:
(a) supervised at such times as agreed in writing by:
(i)a suitable person as agreed between the parties;
(ii) or a professional supervisor as agreed between the parties, with the mother to meet the professional supervisor’s costs;
(b) or supervised by either:
(i)the maternal grandfather, Mr Lissa, in accordance with paragraph 5 herein;
(ii)maternal great grandmother, Ms C, in accordance with paragraph 6 herein.
In the event the child’s time with the mother is supervised by Mr Lissa, the following conditions apply:
(a) such time be for not longer than three (3) hours, not more than once per week;
(b) the changeover at the commencement of time, but not at the conclusion of the relevant time, be supervised by a professional supervisor for the first four (4) occasions, with the mother to meet the professional supervisor’s costs;
(c) such time occur at a public place, as agreed between the mother and the maternal grandmother and failing agreement, nominated by the maternal grandmother on the first four (4) occasions and thereafter by the mother;
(d) the mother and Mr Lissa be restrained by injunction from causing the child to leave the public location; and
(e) the maternal grandmother be at liberty to have a support person present with her at changeover and all parties are directed to remain at a respectful distance from each other.
In the event that time is supervised by Ms C, the following conditions applies:
(a) such time occur at the residence of Ms C;
(b) the changeover at the commencement of time be supervised by a professional supervisor for the first occasion only, at the commencement of the relevant time, but not at the conclusion of the relevant time, with the mother to meet the professional supervisor’s costs;
(c) the mother and Ms C be restrained by injunction from causing the child to leave the residence for the duration of the supervised time;
(d) such time to occur, not more than once per week, as follows:
(i)for the first three occasions, for three (3) hours;
(ii)for the next four occasions, for four (4) hours; and
(iii)thereafter, the time be for six (6) hours;
(e) the maternal grandmother be at liberty to have a support person present with her at changeover and all parties are directed to remain a respectful distance from each other.
For the purposes of paragraphs 5 and 6 herein, the mother cause Mr Lissa and Ms C to make, file and serve an Undertaking to the Court as to their supervision responsibilities.
The Independent Children’s Lawyer have liberty to approach Chambers in the event that:
(a) the Contact Centre raises any concerns about either party; and/or
(b) the professional supervisor raises a concern about what occurred during any relevant changeover;
(c) the supervised time does not occur without reasonable explanation; and/or
(d) the ICL has any concerns about the public place nominated for the purposes of paragraph 5(c) herein.
AND THE COURT FURTHER ORDERS THAT:
All extant applications remain adjourned to this Court on 15 March 2021 at 9.30am for directions (“the directions hearing”).
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these Orders until the date of the next directions hearing will not be heard on that date without the express leave of Judge Monahan, however directions in respect of that Application or Objection may be given.
AND THE COURT NOTES THAT:
(A)These Orders followed an interim hearing heard on 7 September 2020.
(B)These Orders should be read together with the Orders made on 11 March 2020, 23 July 2020 and 7 September 2020.
(C)The purpose of the directions hearing is to:
(i)receive an update on the progress of the parenting arrangements;
(ii)consider the expert report or, likely release date;
(iii)whether the First Respondent should be re-served; and
(iv)in the event that the parties remain in dispute, ascertain the ambit of the dispute and make further directions.
(D)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Lissa & Simu is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 8434 of 2019
| MS LISSA |
Applicant
And
| MR SIMU |
First Respondent
And
| MS MORRIS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These short form reasons are being delivered pursuant to section 69ZL of the Family Law Act 1975 (“the Act”) and are also provided to assist the parties to understand the Orders that the Court has made in this matter.
The parties, MS LISSA (“the mother”) and MS MORRIS (“the maternal grandmother”), are in dispute about parenting matters.
The relevant child is X born in 2015 (“X” or ‘the child”).
X has resided in the primary care of the maternal grandmother since she was six months old. X has no relationship with her biological father, MR SIMU (“the first respondent”). The Court understands the first respondent may be currently incarcerated.
While the parties agree that the child’s time with the mother should remain supervised on an interim basis, they disagree about:
·whether there should be professional supervision at all times (at the mother’s expense when applicable); or
·whether a relative of the child, such as the maternal grandfather or maternal great-grandmother (the mother of the maternal grandfather) should be permitted to supervise the child’s time with suitable undertakings being given by the supervisors to the Court, and with such unpaid supervision be in lieu of, or in tandem with, fortnightly contact centre supervision when it becomes available.
An interim hearing in relation to the issue in dispute proceeded before me on 7 September 2020 by video conference due to COVID-19 protocols. Ms Giacomo of counsel appeared for the mother and Ms Dunkley appeared for the father. Mr Nasti appeared as the Independent Children’s Lawyer (“ICL”).
Following the interim hearing, the Court reserved its decision.
Background
The mother was born in 1997 and is currently 23 years old.
The maternal grandmother was born in 1969 and is currently 50 years of age.
The biological father was born in 1990 and is currently 30 years of age.
The maternal grandfather, MR LISSA, was born in 1966 and he is currently 54 years old. The child’s maternal great-grandmother, MS C, who is the mother of the maternal grandfather, was born in 1945 and she is 75 years of age.
As stated, X – who will turn five in this year – has lived with her maternal grandmother since she was six months old. At the time the child came into the care of the maternal grandmother the mother was in a violent relationship with X’s father. The mother gives evidence that she voluntarily placed X with the maternal grandmother.
The mother commenced these proceedings against the maternal grandmother (and the biological father) with her Initiating Application filed on 10 December 2019.
The maternal grandmother filed a Response on 4 March 2020.
There is evidence that the biological father, who has had little involvement in X’s life, has been served with the relevant court documents and should be aware that these proceedings are before the Court.
The proceedings first came before me in a duty list on 11 March 2020, and on that occasion I made certain Orders and directions including:
·an order for the appointment of an ICL;
·for the parties and the children to attend a Child Dispute Conference on 5 June 2020;
·for the matter listed for interim hearing on 23 July 2020;
·the restraint on both parties from consuming, using or being under the influence of alcohol and any illicit substance when X is in their care and for 72 hours prior;
·the mother undertake a hair follicle test at her own expense;
·both parties to communicate via text message and email only in relation to parenting issues concerning X, unless otherwise agreed in writing;
·both parties being restrained from exposing the child to violence, denigrating the other in the presence or hearing of X or making critical or derogatory remarks on social media, or discussing these proceedings with X; and
·for X to live with the maternal grandmother and spend time with the mother for two hours each week, with such time to be supervised by ‘E Contact Centre’ at the mother’s expense.
Given the late appointment of the ICL, the interim hearing listed for 23 July 2020 did not proceed and the Court agreed to relist the interim hearing to a later date. The parties were able to agree to a number of interim outcomes as proposed by the ICL and as reflected in the Orders made that day:
1. The interim hearing listed at 11:00am on 23 July 2020 be vacated.
2. Paragraph 8 of the Orders made on 11 March 2020 be vacated.
3. The child [X] born [in] 2015 spend supervised time with the mother as follows:
a. For three hours each Thursday from 1:00pm to 4:00pm at the [G Centre] or at such other place as may be agreed between the mother and Second Respondent; and
b. For one hour each Friday from 3:00pm-4:00pm; and
c. At such other times as may be agreed between the mother and the Second Respondent.
4. The Applicant’s application seeking her time with the child be supervised by Mr [Lissa] and/or [Ms C] be set down for interim hearing on a date and time suitable to the Court.
5. That the Applicant file an affidavit by. [Ms C] as to her suitability to supervise the Applicant’s time within 14 days of the date of these orders
6. The Second Respondent have leave to file an updating affidavit going to the suitability or otherwise of the proposed supervisors, [Mr Lissa], or [Ms C] such affidavit to be filed and served within 28 days of the date of these orders.
7. The Applicant have leave to file an affidavit in reply, such affidavit to be filed and served within a further 28 days.
The interim hearing ultimately proceeded on 7 September 2020. Although there was no Minute of agreed orders, the Court was informed that the parties are on the waitlist for contact to occur at the B Contact Centre at Suburb D and may agree to an expert report being prepared, subject to funding. The Court was also informed that the maternal grandmother is legally aided but the mother is not legally aided and currently relies on the maternal grandfather for financial assistance.
The Court made the following orders on 7 September 2020 with respect to the preparation of an expert report:
4. Pursuant to r.15.09 of the Federal Circuit Court Rules 2001, an expert as agreed between the parties (“the expert”) be appointed to prepare a report (“the expert report”) addressing the issues identified in a joint letter to the expert prepared by the parties.
5. The parties have leave to approach Chambers with a minute in respect of the appointment of an expert for the purposes of the preparation of an expert report.
6. The Independent Children’s Lawyer have liberty to approach Chambers for the matter to be relisted in the event the parties are unable to agree as to an expert.
Following the interim hearing, the Court reserved its decision in respect of the discrete issues in dispute.
Proposals
The mother, maternal grandmother and the ICL each provided the Court with their Minute of Proposed Orders. I note that the ICL supports the maternal grandmother’s proposal for professional supervision to continue for all supervised time.
Mother
The mother proposes that, in lieu of paid supervision, a relative of the child, such as the maternal grandfather or maternal great-grandmother (the mother of the maternal grandfather) be permitted to supervise the child’s time. If permitted, they would be required to provide suitable Undertakings to the Court.
The mother’s Minute states:
1. That orders 8 and 9 of orders dated 11 March 2020 be discharged.
2. That [X] (born [in] 2015) spend time with the mother on a weekly basis each Saturday and Sunday from 9am to 5pm thereafter.
3. That the time in order 2 be supervised by [Mr Lissa], [Ms C] or other agreed supervisor from time to time.
4. That changeover occur at [Suburb G] McDonalds.
Maternal Grandmother
The maternal grandmother proposes the continuation of the existing arrangements whereby the child spends time with the mother twice a week supervised by E Contact Centre or other agreed professional supervision service. When a place becoming available at B Contact Centre at Suburb D, the maternal grandmother proposes that the child spend time with the mother at times as agreed between the parties or as nominated by the Contact Centre.
The maternal grandmother’s Minute states:
1. That the mother’s application for [Mr Lissa] and/or [Ms C] to supervise the child’s time with the mother be dismissed.
2. That the child spend supervised time with the mother as follows:
a. Each Thursday from 1:00pm to 4:00pm;
b. Each Friday from 3:00pm to 4:00pm; and
c. At such other times as may be agreed between the parties in writing.
3. That for the purpose of the above order:
a. The child’s time with the mother is to be supervised by [E Contact Centre]; and
b. The cost of the supervision is to be borne by the mother.
4. That upon a place becoming available at [B Contact Centre] at [Suburb D], the child shall spend time with the mother at times as agreed between the parties in writing and subject to the availability of the supervision service and for this purpose:
a. The cost of the supervision is to be borne by the mother; and
b. Both parties shall follow all reasonable directions of the supervision service staff.
ICL
At this time, the ICL does not support the variation of the interim Orders relating to professional supervision. That said, the ICL does not oppose supervision occurring at the relevant contact centre when it becomes available.
Issues to determine
While the parties agree that the child’s time with the mother should remain supervised on an interim basis, they disagree about:
First, whether the child’s time with the mother should be professionally supervised at all times (at the mother’s expense when applicable) either at a contact centre or by a professional supervision service, or a combination of both; or
Second, whether the maternal grandfather or maternal great-grandmother (the mother of the maternal grandfather) should be permitted to supervise the child’s time, with suitable undertakings being given by the supervisors to the Court; and if so;
Third, whether such unpaid supervision be in lieu of, or in tandem with, fortnightly contact centre supervision when it becomes available.
Evidence and submissions
The parties and the ICL provided the Court with case outline documents.
Mother
The mother provide relied on the following documents at the interim hearing:
·Initiating Application filed 10 December 2019;
·Her consolidated Affidavit filed 6 July 2020;
·Affidavit of Mr Lissa sworn 11 March 2020 and filed 16 July 2020;
·Affidavit of Ms C sworn on 11 August 2020 and filed 17 August 2020; and
·Her Notice of Risk filed 10 December 2019.
The mother did not tender any documents at the hearing.
Maternal Grandmother
The maternal grandmother relied on the following documents at the interim hearing:
·Response to Initiating Application filed 4 March 2020;
·Her Affidavit sworn and filed 18 June 2020;
·Her Affidavit sworn 28 August 2020 and filed 31 August 2020; and
·Child Dispute Conference Memorandum dated 5 June 2020 (see Schedule 1 to these reasons).
The maternal grandmother did not tender any documents at the interim hearing.
ICL
The ICL did not tender any documents at the interim hearing.
Child Dispute Conference Memorandum
As stated, the parties attended a Child Inclusive Conference on 5 June 2020. The relevant family consultant was Ms H and she subsequently provided the Court with a Memorandum which both parties asked the Court to read for this hearing.
As stated, the Memorandum is reproduced in full in Schedule 1 to these reasons and was tendered by the Court as Exhibit “A”.
Relevant law
Parenting proceedings are governed by the provisions of Part VII of the Act.
Parenting orders are defined in section 64B of the Act, and deal with outcomes relevant to this decision, including the time and circumstances of a child spending time with the parent that the child does not primarily reside with. This includes issues such as whether a child’s time should be supervised or otherwise accompanied by a responsible person being present and/or occur at a particular place. The Court can also make orders conditional upon a certain event occurring such as an ongoing drug testing regime for either parent or undertakings being provided.
The power to make a parenting order is found in section 65D(1) of the Act. The power to make a parenting order that “discharges, varies, suspends or revives some or all of an earlier parenting order” is found in section 65D(2) of the Act.
Parenting orders can also deal with the allocation of parental responsibility. In the absence of the Court making a parenting order, each parent of the child has parental responsibility for their child (see section 61C of the Act). There is no presumption in favour of a non-parent, such as a grandparent.
If the Court makes a parenting order, then it must also consider a rebuttable presumption that the parents have equal shared parental responsibility for their child (see section 61DA of the Act). I note that if the Court is making an interim parenting order the Court may consider that it would not be appropriate for the presumption to be applied given the circumstances of the case (see section 61DA(3) of the Act). I am satisfied that provision has application in this matter at this stage of the proceedings given that the child resides with the maternal grandmother, the mother is still facing criminal charges, and the biological father may be in prison. Consequently, section 65DAA is not triggered at this juncture and the Court need not consider whether there should be an order that the child lives in an equal time arrangement or otherwise spends substantial and significant time with the parent that the child does not ordinarily live with.
Section 60CA of the Act makes it clear for the purposes of making a parenting order, the Court must regard the best interests of the child as the paramount consideration. What is considered to be in the best interests of the child in a parenting dispute depends on the particular circumstances in each matter, as different circumstances require different outcomes. That all said, to determine the best interests of the child in this case, the Court is required to consider the statutory provisions in light of the available evidence, including the primary and secondary considerations in section 60CC of the Act.
Discussion and findings
The Court will now consider the issues in dispute.
Whether the child’s time with the mother should be professionally supervised at all times
As stated, while the parties are in agreement that the child’s time with the mother should remain supervised, they disagree about whether the maternal grandfather or the maternal great-grandmother (the mother of the maternal grandfather) should be permitted to supervise the child’s time with suitable undertakings being provided to the Court.
Mother’s submissions
The mother asks the Court to note that it now has the benefit of a number of reports from the E Contact Centre contact service (see Annexure F to the mother’s consolidated affidavit). She argues that the records of the supervised visits demonstrate that:
·X has a very close and loving relationship with her mother;
·the mother is child-focussed during the visits and demonstrates capacity to meet X’s needs; and that
·X enjoys the time with the mother and X often requests that she be able to stay longer.
It is for these reasons that the mother argues that the child would benefit from increasing the length of the visits over time. Such an increase would not be possible with a contact centre only offering two hours a fortnight. Given the child’s age, the mother argues that the child is benefiting from the visits with her and is likely to benefit from an increase in time.
In relation to professional supervision by a service, the mother argues that the cost of the visits is prohibitive for the mother in the long term. It was conceded during submissions that the cost of each visit is $300. Presently, the maternal grandfather is financially assisting the mother with these costs.
The mother also argues that there has now been a sufficient number of professionally supervised visits for the maternal grandmother to feel confident in the mother’s capacity to care for X in a supervised setting.
The mother gives evidence that she now lives in a home with her father, Mr Lissa, the maternal grandfather. Mr Lissa has provided an affidavit setting out his understanding of his role as a supervisor and his willingness to supervise the time.
The mother also seeks that her paternal grandmother, Ms C, the child’s maternal great-grandmother, be a supervisor. Ms C has provided an affidavit setting out her understanding of her role as a supervisor and her willingness to supervise the time. The mother argues that the supervised contact visits annexed to her affidavit indicate that Ms C has a close relationship with X and that X is comfortable in her care.
The mother submits that unpaid supervision by the child’s maternal grandfather or great-grandmother will enable the visits to take place at the home in which the mother resides or the home of the child’s maternal great-grandmother and will enable the time to increase. The mother argues that such time would then be able to take place “in a more natural setting for X”.[1]
[1] Mother’s case outline document, paragraph 15.
The mother also argues that if the maternal grandmother:[2]
“has some trepidation about the supervision of time, the mother would be willing to engage in a short transition period where the supervision service is present when [Mr Lissa] or [Ms C] are present for the purposes of monitoring the supervision provided. She would be agreeable to there being a couple of visits with [E Contact Centre] present for a couple of hours at the commencement of time.”
[2] Mother’s case outline document, paragraph 16.
Maternal grandmother’s submissions
The maternal grandmother submits that the Court should take a cautious approach when considering whether the supervision requirements relating to the child’s time with the mother ought to change. The maternal grandmother argues that professional supervision should continue into the foreseeable future and presumably until there are recommendations from an expert that are agreed to and/or a further determination by the Court.
The grandmother gives evidence of the maternal grandfather’s alleged historic and ongoing drug use and poor mental health. The grandmother also gives evidence of Ms C’s alleged long-term health difficulties and alleged submissive relationship with the mother. The grandmother asserts that “both [Mr Lissa] and [Ms C] are unsuitable supervisors for the purpose of supervising the child’s time with the mother”.[3]
[3] Maternal grandmother’s case outline document, paragraph 13.
The grandmother also asserts that the maternal grandfather has been physically abusive towards her. She gives evidence of maternal grandfather “smashing her head against a door frame and kicking her in the legs whilst she was pregnant”.[4]
[4] Maternal grandmother’s case outline document, paragraph 35.
Additionally, the maternal grandmother submits that the mother’s own risk factors relating to drug use, violent behaviour, and mental health issues may make it difficult for either the child’s maternal grandfather or great-grandmother to supervise the time effectively.
Mother’s response
I note the following submissions from the mother:
7. The Second Respondent makes complaint that between 1995 and 1999 she observed [Mr Lissa] to use marijuana and [illicit drugs] (MGM [9]). She also raises concern about the possibility that he may drink and drive (MGM [14]). She makes no complaint of any occasion after 1999 in which she has observed [Mr Lissa] to have been under the influence of drugs or alcohol whilst the mother and/or [X] have been in his care.
8. Despite her historical complaints about [Mr Lissa]:
a. The Respondent deposes that during her relationship with [Mr Lissa], [Mr Lissa] would care for the mother whilst she was undertaking a course.
b. The unchallenged evidence of the mother is that she went to live with [Mr Lissa] in 2009 when she was 12 years of age (M [12]) at a time when there were Family Law Act orders providing for her to live with the Second Respondent. Despite having an order in her favour, there is no evidence that the Second Respondent sought to enforce the family law orders against [Mr Lissa], and it can be inferred that she did not do so because she was satisfied he would provide good care to the mother.
c. The Second Respondent relied upon [Mr Lissa] between 2017-2018 to transport her and [X]. She makes no complaint about his use of drugs and/or alcohol during this time. The Second Respondent would not have made these requests if she had concerns about his use of illicit substances or alcohol whilst driving. The use of [Mr Lissa] for transport only ceased when the Second Respondent obtained her own vehicle (MGM [14])
9. Any concern that the Second Respondent has about [Mr Lissa]’s alleged use of illicit substances and/or alcohol can be alleviated by [Mr Lissa] providing an undertaking. [Mr Lissa] is prepared to give an undertaking without admissions that he will not use illicit substances and/or alcohol whilst he is supervising [X]’s time with the mother or for 12 hours prior.
10. The Second Respondent makes complaint about [Mr Lissa]’s mental health. Her direct observations of his mental health are limited to the period of their relationship (ie some 20 years ago). There is no evidence of any current mental health issues that are likely to have an impact on [Mr Lissa]’s capacity to properly supervise the mother’s time with [X].
11. The Second Respondent complains that [Ms C] is in poor health. This is in contrast to [Ms C’s] affidavit in which she deposes that she is in good health and that she takes medication for her health issues (at para[12]). No concerns or observations were raised in the supervised contact visits about [Ms C’s] lack of mobility or about her health in general.
12. The Second Respondent raises concerns that [Mr Lissa] and [Ms C] are aligned with the mother. There is no doubt that both proposed supervisors love the mother and wish to support her. The Second Respondent relies primarily upon the alleged criminal activity of the mother in 2020 to support her assertion that [Mr Lissa] and [Ms C] will be unable to intervene and protect [X] if required.
13. The fact that the mother may have engaged in criminal activity post-separation is not probative of an inability of either [Mr Lissa]’s or [Ms C’s] ability to intervene during supervised time when needed.
14. Both [Mr Lissa] and [Ms C] have provided affidavits setting out what they intend to do if they have a concern that [X] is at risk. Both are prepared to give undertakings to the Court that they will terminate the time if the mother appears at any time to be under the influence of any substance or if they perceive [X] to be at risk.
ICL’s submissions
The ICL agrees with the maternal grandmother that professional supervision should continue.
The ICL submits:[5]
Taking into account the material currently filed by the maternal grandmother and the responses contained in the mother’s Affidavit and the Affidavits of [Ms C] and [Mr Lissa] the ICL does not support the interim Orders relating to supervision being varied.
The ICL submits that the risks that are raised in the maternal grandmother’s material have not been rebutted.
It will benefit the Court and all parties for there to be written contact reports from the Supervision Services setting out the mother’s engagement with contact and the benefit to the child of the time spent with her mother.
Based on all the material currently available the ICL supports the maternal grandmother’s proposed Minute of Order.
[5] ICL’s case outline document, paragraph 18.
Findings
Having considered the submissions in light of the available evidence, the Court finds that there should be a transition for professional supervision to continue into the immediate future, in tandem with unpaid supervision by a suitable third party. In some cases, it may be appropriate for changeovers to be professionally supervised, possibly as a transitional condition, and/or that the unpaid supervision only occur in public places.
Apart from affording a safe environment for the child, the benefits of professional supervision include the gaining of knowledge and objective evidence as to the outcomes of the time spent between the child and the relevant parent. That said, professional supervision comes at a cost that is often unaffordable to many parents. It can assist in filling the void until a (subsidised) contact centre becomes available. Moreover, given that many contact centres can only offer a two-hour period once a fortnight, a paid supervision service (or suitable unpaid supervision) may also need to be used to supplement or otherwise enable more frequent supervised time to occur.
In this case, the Court notes that the parties may shortly commence using a contact centre. The Court finds this appropriate. The Court is also satisfied that this professionally supervised time should be complemented by additional unpaid supervision by a suitable third party. The child is now spending time with her mother twice per week and any reduction in this time may have adverse consequences. In the event that the parties are unable to agree as to who may be an appropriate supervisor, then the Court must decide if a default outcome should apply. In this case, the mother proposes her father and/or her grandmother. Both these close relatives are known to the child and are supportive of the mother. This outcome is opposed by the maternal grandmother and the ICL.
The Court will now consider the appropriateness of this proposal.
Whether the child’s maternal grandfather or maternal great-grandmother should be permitted to supervise the child’s time
As noted in the above submissions, the mother puts forward the child’s grandfather, or great-grandmother, as adults/relatives suitable to supervise the child’s time with her. This is opposed by the maternal grandmother and not supported by the ICL who both propose the retention of professional supervision at all times.
Having considered the submissions in light of the available evidence, the Court finds that, with additional safeguards and conditions, there should be a transition to unpaid supervision with either the child’s maternal grandfather or the maternal great-grandmother.
Apart from the execution of suitable undertakings, there will be a number of additional conditions imposed:
First, where the maternal grandfather, Mr Lissa, is to act as supervisor, such supervision is to occur in a public place such as a park or play centre with a professional supervisor to supervise changeover at the commencement of the relevant time (but not the conclusion of the relevant time). The mother and the maternal grandfather will also be restrained from causing the child to leave the public place. Unless any concerns are raised by the professional supervisor, professionally supervised changeover will cease after four (4) occasions. The mother will be responsible for the costs of the supervised changeovers and the ICL can have liberty to apply if the professional supervisor raises any concerns. The duration of the supervised time will be three (3) hours. It will be limited to no more than one (1) occasion each week. The maternal grandmother will be at liberty to bring a support person with her for changeovers. The Court is satisfied that these restraints satisfactorily deal with the maternal grandmother’s concerns.
Second, where the maternal great-grandmother, Ms C, is to act as supervisor, such supervision may occur at her home. There will be a requirement that a professional supervisor supervise the first changeover only at the commencement of the relevant time (but not the conclusion of the relevant time). There will also be a restraint imposed that the child is not to leave the maternal great-grandmother’s home for the duration of the supervised time. The mother will be responsible for the costs of the first supervised changeover and the ICL can have liberty to apply if the professional supervisor raises any concerns. The duration of the time supervised will be three (3) hours for the first four (4) occasions, four (4) hours for the next four (4) occasions and thereafter six (6) hours on each occasion. It will be limited to no more than one (1) occasion each week. The maternal grandmother will be at liberty to bring a support person with her for changeovers. The Court is satisfied that these restraints satisfactorily deal with the maternal grandmother’s concerns.
The Court finds accordingly.
Whether the unpaid supervision be in lieu of, or in tandem with, fortnightly contact centre supervision when it becomes available
While there appeared to be a consensus that the parties will take up the opportunity for a contact centre placement when it becomes available, I note that this is not the mother’s proposal before the Court.
Upon noting that it is likely that the relevant contact centre will only be able to offer one two-hour session each fortnight, the Court sees merit in there being some professional supervision at a contact centre, at least in the shorter term, in case either the child’s maternal grandfather or the maternal great-grandmother become unavailable to supervise. It will also assist to provide some objective evidence that the contact visits proceeded without incident, or otherwise. This requirement can be reviewed by the Court in the New Year. The ICL can have liberty to apply if the contact centre raises any concern.
The Court finds accordingly.
Conclusion
In this interim decision, the Court has found that:
·First, the child’s time with the mother should continue to be supervised and it is appropriate for there to be a transition regime that combines professional supervision and unpaid supervision by an agreed supervisor, and failing agreement, by the child’s maternal grandfather (Mr Lissa), or maternal great-grandmother (Ms C).
·Second, the Court finds that it is in the child’s best interest for the undertakings by Mr Lissa and Ms C, to be underpinned by specific conditions outlined by this Court. Where the maternal grandfather is to act as supervisor, a professional supervisor will oversee the changeover only at the commencement of time, for the first four (4) occasions, with the mother to meet the costs of this service. The time will be of three (3) hours, be located at a public place, and with a restriction in place preventing the mother and maternal grandfather from causing the child to leave the public place. This arrangement will be limited to not more than once per week. The ICL will have leave to apply in the event the professional supervisor raises any concerns.
·Where the maternal great-grandmother is to supervise, a professional supervisor will oversee the changeover on the first occasion and at the commencement of time, with the mother to meet the cost of this service. Such time is to occur at the maternal great-grandmother’s home, with the mother and the maternal great-grandmother to be restricted from causing the child to live the home for the duration of the supervised time. The child’s time with the mother would be limited to not more than once per week, and is to be a period of three (3) hours for the first four (4) occasions, increasing to four (4) hours for a further four (4) occasions, and six (6) hours on each occasion thereafter. The ICL will have liberty to apply in the event the professional supervisor raises any concerns.
·Third, the Court finds it appropriate to retain some level of professional supervision at a contact centre for the short term, and in tandem with the transitional schedule above. This issue can be reviewed at the appropriate time.
In relation to procedural directions, the matter is to remain listed for directions on 15 March 2021. On this date the Court will receive an update on the progress on the preparation of an expert report noting the orders made on 7 September 2020 which were referred to earlier in these reasons.
There will be Orders of the Court to reflect these reasons.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Associate:
Date: 1 October 2020
Schedule 1
Child Dispute Conference Memorandum 5 June 2020
This assessment concerns the child X aged 4 years (born in 2015).
X has lived with her maternal grandmother since she was months old. The mother has reportedly spent fairly regular time with X throughout her life. This includes from when the mother was incarcerated from early 2017 to late 2018 with the maternal grandmother reportedly taking X for visits. Upon the mother’s release from prison, X was spending regular time with her mother as arranged between the mother and maternal grandmother until to mid-2019 when the mother and maternal grandmother had a dispute and an AVO was applied for protecting the maternal grandmother from the mother (as detailed in affidavit material).
The mother subsequently initiated Federal Circuit Court proceedings in December 2019. Interim orders were made in March 2019 for X to resume spending time with her mother and that this would occur for two hours each Thursday at G Centre under the supervision of supervised contact service ‘E Contact Centre’. Due to the Covid-19 pandemic, however, the arrangements for supervision had to be altered and X has been having supervised video call sessions with her mother twice a week for two hours since early 2020. These sessions, however, were suspended for a period of three weeks prior to this Child Dispute Conference (CDC) as the mother was incarcerated, having been released on bail days prior to this CDC (mid-2020). The video call contact sessions were reportedly to resume the week following this CDC.
ISSUES IN DISPUTE
The applicant mother seeks final orders for sole parental responsibility for X, for X to live with her, and spend time with the maternal grandmother as agreed between the mother and grandmother. In the interim, the mother proposes that X spend time with her each Saturday and Sunday from 2pm-5pm (for a period of four weeks), and then each Saturday and Sunday from 9am-5pm (for a period of four weeks) and then every second weekend from 3pm Friday to 8:30am Monday.
The maternal grandmother seeks orders for sole parental responsibility for X, and for X to live with her on both an interim and final basis. She proposes that, on an interim basis, X spend time with her mother for two hours each week under the supervision of a supervised contact service and that the mother be restrained by injunction from consuming drugs or alcohol 72 hours prior to spending time with X and during her time with X. She furthermore proposes that the mother attend upon a mental health practitioner and comply with recommended treatment and that she have regular hair follicle drug testing. The grandmother indicated that, on a final basis, she would propose that X spend time with the mother as agreed between her and the mother.
RISK FACTORS
Family violence
The maternal grandmother claims that the mother has been very verbally aggressive and threatening towards her on a number of occasions throughout their relationship. Details of such behaviour are outlined in affidavit material and include the mother yelling aggressively at the grandmother and making threatening comments such as that she will “slash” the grandmother’s throat. The grandmother said that the mother may have been somewhat physically aggressive on occasions too but not significantly so and not in recent memory.
There have been two AVO’s in place historically protecting the grandmother from the mother. One was put in place when the mother was approximately 13 years of age. The mother said in relation to this AVO “I was not a pleasant child”. The other one was put in place on a provisional basis in mid-2019 as a result of a verbal dispute as detailed in affidavits. This AVO was dismissed on a final basis in early 2020. The mother denies she was verbally aggressive or threatening towards the grandmother on this occasion, and rather claims the grandmother was verbally aggressive to her.
The mother claims that the grandmother was violent and emotionally abusive towards her during her youth. There was an AVO in place protecting the mother from the grandmother when the mother was approximately 12 years old. The mother said, however, that the grandmother has not been violent or abusive towards her in many years and that their relationship changed. She claims, however, that she feels somewhat controlled by the grandmother in relation to the time she can spend with X.
Child safety and wellbeing
The mother did not raise any concerns about the grandmother’s care of X saying that she things the grandmother has done a “fantastic job” and that she is grateful to her mother for her care of X.
The grandmother said she has very serious concerns for X’s safety and wellbeing with the mother as the mother has a history of illicit drugs use, aggressive and erratic behaviour, criminal activity, gambling, and lack of consistent engagement with, and responsibility for, X. These concerns are detailed more extensively in the grandmother’s affidavit. The grandmother appears reluctant to believe that Ms Lissa has changed her ways or can sustain such change.
The mother acknowledges a history of illicit drug use and that she was selling drugs prior to her incarceration in 2017. She seems to deny other concerns raised about her behaviour. She said that she has not used drugs since she was incarcerated in early 2017. She said she completed hair follicle testing as per orders made which she says demonstrate she has been drug free for the last 12 months.
The grandmother acknowledged that the mother has produced a hair follicle test result that demonstrates she has not used drugs for the last 12 months. The grandmother said she was surprised by this and said she had been told by someone that knows the mother that they had seen the mother and her partner at their drug supplier’s home which was possibly approximately a year ago. The grandmother said she believes that if the mother is not using drugs, she would be selling drugs. She said that she also doubts the mother’s ability to remain drug free long term.
The mother said she was incarcerated weeks ago as a result of a misunderstanding. She said that she and her partner were in F Store in Suburb J after picking up furniture they bought from that area. She said that she left her partner in F Store while she went to buy some other items and returned to the car where she was to meet her partner. She said that, while waiting at her car, she saw her partner running towards her being followed by two unknown men and her partner instructed her to leave. She said she got in her car and drove off as she did not know what was happening and was fearful. She said that she was subsequently pulled over by police and arrested. The mother said she has subsequently learned from police that it was believed that she and her partner had stolen something from F Store and that is why her partner was being followed by these two men. She denies that she or her partner stole anything. She said the next Court mention is in mid-2020.
Drugs and alcohol
As noted above and as detailed in affidavit material, the maternal grandmother claims the mother has a history of drug and alcohol use. The mother agrees she has a history of drug use but says she has not used drugs since early 2017. She denies that she has a problem with alcohol.
Mental health
The mother did not raise any concern about the grandmother’s mental health.
The grandmother is concerned about the mother’s mental health as she claims the mother’s mood changes very suddenly and dramatically.
The mother said that she was diagnosed in prison as having drug use disorder and, while it is noted in affidavit material that the psychiatrist also indicated that she may have a mental illness, the mother said in interview that the psychiatrist changed their diagnosis to that of complex post-traumatic stress disorder.
The mother said that she is seeing a drug and alcohol counsellor weekly. She said that she has been advised that it is best to only see a drug and alcohol counsellor at this stage as trying to address too many psychological issues at once may be too challenging. She reports her current mental health, however, is good.
ADULT RELATIONSHIPS
The mother and grandmother have not spoken since mid-2019.
The mother said that she has tried to contact the grandmother but she has not responded. The mother indicated that she wishes to be able to communicate with the grandmother.
The grandmother indicated that she does not trust the mother and is thus reluctant to have contact with her at this stage. She believes that the mother attempted to orchestrate a situation to make her look badly when she began discussing X’s care with her in mid-2019 which led to the dispute which caused the AVO to be put in place.
The grandmother said that she has always supported the mother being involved in X’s life which included her taking X to visit the mother regularly while incarcerated and her trying to encourage the mother to be involved in X’s life and care following her release from prison. While the grandmother indicated that she believes it is best for X to have her mother in her life she appears resistant to the idea of X being in the mother’s primary care or spending unsupervised time with the mother as she does not believe X would be safe or adequately cared for by the mother. The grandmother indicated that, even if the mother were to prove she does not present a risk to X’s safety, she would be concerned about X being moved from her primary care when X is stable and developing well in her care and knows no other care than hers.
The mother said that she is aware that it may be a long process to demonstrate that X is safe and well in her care and she is willing to move slowly to demonstrate this and help X transition to spending more time in her care and eventually transition into her primary care if this is what the Court orders.
ISSUES FOR THE CHILDREN
The grandmother has raised very serious concerns about X’s safety and wellbeing with the mother. Further assessment of the safety concerns will be necessary in determining the best care arrangement for X.
Given the severity of concerns raised, particularly in relation to the mother’s history of drug use and mental health issues, a Chapter 15 single expert report would be beneficial. It is acknowledged that such reports can be very costly, however, and the parties may not be able to afford such. A second option may be for a Family Report to be done, ideally with the benefit of an assessment being done of the mother by a drug and alcohol expert. Information from the mother’s drug and alcohol counsellor may also be of great assistance as well as information from any mental health professionals that the mother has previously been engaged with.
Information from NSW police about the mother may also be of assistance in assessing the safety concerns.
Continued drug testing may also be of assistance.
Until further assessment can occur, X’s safety must be prioritised. A cautious approach may be for X to spend supervised time with her mother until more information is gathered about the safety concerns (not simply the mother’s drug use but also whether she has had any recent involvement in criminal activity and whether she is being consistent in spending time with X). To assist the maintenance and development of X’s relationship with her mother, it would be beneficial for X’s time with her mother to occur in person once this option in available.
Given the very serious concerns raised it may be of assistance if an ICL is appointed.
It is noted that X’s father has reportedly not had any involvement in X’s life. Consideration may need to be given to the father being informed of these proceedings in order to ascertain what connection X might have with her father, if any, in the future.
AGREEMENTS REACHED
Nil
FUTURE DIRECTIONS
It is recommended that the mother continue to engage in drug testing, ideally hair follicle testing.
It is recommended that a Chapter 15 single expert report be conducted or that, in lieu of this, that the mother be assessed by a drug and alcohol expert and that a Family Report also occur.
It is recommended that subpoenas be issues to NSW Police and probation and parole, the Department of Communities and Justice, and the mother’s drug and alcohol counsellor/any former treating psychologists or psychiatrists.
It is recommended that an ICL be appointed.
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