Madigan and Madigan and Ors

[2018] FamCA 1062

FAMILY COURT OF AUSTRALIA

MADIGAN & MADIGAN & ORS [2018] FamCA 1062

FAMILY LAW – CHILDREN – Interim – With whom a child spends time – Whether time between the children and the father should be supervised – Where the paternal grandmother is willing to act as a supervisor – Where there are allegations of risk to the children in the father’s care – Where the mother seeks to suspend the father’s time with the children – Best interests of the children – Where a suspension of time would disrupt the relationship between the children and the father.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Marvel v Marvel [2010] FamCAFC 101
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Madigan

1st RESPONDENT: Mr Madigan

1st^t INTERVENER: Ms Middleton

2nd INTERVENERS: Ms Hunter and Mr Clarke

INDEPENDENT CHILDREN’S LAWYER: Mr Ian Charman

FILE NUMBER: ADC 4332 of 2014

DATE DELIVERED: 13 December 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 26 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: SE Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Litigant in person

COUNSEL FOR THE 1st INTERVENER:              No appearance

COUNSEL FOR THE 2ND INTERVENERS: Ms O’Connell

SOLICITOR FOR THE 2ND

INTERVENERS

Clelands Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Charman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adelta Legal

* Pursuant to Regulation 17.02 of the Family Law Rules 2004 this order is amended on the 13 December 2018.

Orders

1. That paragraphs 2 and 9 of Orders made 21 December 2017 be discharged.

2. That X born … 2008 and Y born … 2011 (“the children”) spend time with the father as follows:-

   (a)Between 10.00 am and 3.00 pm on Saturday 15 December 2018 and each alternate fourth week thereafter;

   (b)Between 10.00 am and 3.00 pm on Sunday 23 30 December 2018 and each alternate fourth week thereafter;

   (c)Between 10.00 am and 3.00 pm on 24 December 2018.

3. That the children’s time with the father shall be supervised by the paternal grandmother.

4. That Ms Middleton be removed from the proceedings as an intervener.

5. That handovers shall occur at McDonalds Restaurant, B Street, Adelaide or such other venue as may be agreed.

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 Madigan & Madigan and Ors 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 ADELAIDE

FILE NUMBER: ADC 4332 of 2014

Ms Madigan

Applicant

And

Mr Madigan

Respondent

And

Ms Middleton
First Intervener

And

Ms Hunter and Mr Clarke
Second Interveners

REASONS FOR JUDGMENT

introduction  

1. By Initiating Application filed 6 July 2016 Mr Madigan (“the father”) seeks orders that X born in 2008 (“X”) and Y born in 2011 (“Y”) (collectively “the children”) live with him and spend time with Ms Madigan (“the mother”) as may be agreed between the parties. Interim orders were also sought that the mother undergo random drug testing and that the time the children spend with her be supervised.

2. By Response filed 20 September 2016 the mother sought that the final orders made by consent on 25 November 2015 continue to the extent that the orders provided for the children to live with her.

3. Ms Middleton (“the paternal grandmother”) was joined as a party to the proceedings by order made by Judge Kelly on 19 September 2017 following the father’s arrest for aggravated assault on Y. The father’s bail conditions prevented him from spending time with the children. He filed an application on 21 August 2017 seeking that the paternal grandmother spend time with the children in lieu of his scheduled time until he is permitted to again spend time with the children.

4. Ms Hunter and Mr Clarke (“the maternal grandmother and step-grandfather”) filed an Application on 17 October 2017 seeking to be joined to the proceedings. They were concerned as to the welfare of the children and anticipated they would like to enter into a co-parenting arrangement with the mother. Their concern for the children can be characterised by their Amended Application in a Case filed 22 November 2017 wherein they seek final orders that they share parental responsibility for the children with the mother and that the children live with the mother and spend time with them each alternate weekend. They seek orders that if the mother recommences a relationship with Mr C, resides with him or spends time with him then the children will live with the maternal grandmother and step-grandfather and spend time with the mother as agreed.  

5. On 21 December 2017 Judge Kelly made orders summarised as follows:-

   (1)That all previous orders for the children to spend time with the father are suspended until further order.

   (2)That the children spend time with the father for up to four hours on any day the children are in the care of the paternal grandmother provided that such time is supervised by the paternal grandmother or the paternal grandfather Mr D Madigan.

   (3)That the father is permitted to spend time with the children in the presence of his partner and the children E and F.

   (4)That the father is restrained from disciplining, abusing, threatening, intimidating or physically chastising the children.

   (5)That the paternal grandmother ensure that the children are not exposed to any aggressive or threatening behaviour from their father.

   (6)That the paternal grandmother comply with her requirements as a supervisor as expressed in the Legal Services Commission Brochure entitled “Should I Supervise Contact”.

   (7)That the paternal grandfather file an Undertaking that he will ensure he shall diligently supervise the children’s time with the father.

   (8)That the children spend time with the paternal grandmother as follows:-

   (a)Each alternate weekend from the conclusion of school (or 3.00 pm) Friday until approximately 1.00 pm Sunday;

   (b)At such other times as may be negotiated between the paternal grandmother and the mother or the maternal grandmother and the paternal grandmother.

   (9)That the children spend time with the maternal grandmother as follows:-

   (a)Each alternate weekend from the conclusion of school (or 3.00 pm) Thursday until the commencement of school (or 10.00 am) on Monday; and

   (b)Such other times as the maternal grandmother and the mother may agree from time to time.

6. The proceedings were then transferred to the Family Court of Australia.

BACKGROUND

1. The father was born in 1975 and the mother was born in 1972. The parties commenced their relationship in 2002, were married in 2005 and separated on 8 September 2013. A Divorce Order became final in March 2016.

2. It is conceded that the mother and father are not able to co-parent and are unable to communicate without conflict.

3. Each of the parties makes serious allegations in respect of the other’s conduct during the course of the relationship. The mother alleges that the father engaged in coercive and controlling conduct and perpetrated ongoing family violence. The father denies the mother’s allegations and counters with his own allegation that the mother was dependent on illicit drugs and suffered from post-natal depression.

4. The father alleges that there were times when the mother was absent from the family home leaving the children in his care for “weeks at a time” without prior warning or proper arrangement.

5. Consent Orders were made on 25 November 2015 which provided for the children to live with the mother and spend time with the father on alternate weekends from Thursday after school until Monday morning.

6. In May 2016 the father retained X on the basis that the child was stressed in the mother’s care and had been exposed to domestic violence between the mother and her partner and her use of methamphetamine.

7. There is an allegation that during the period that X was in the father’s care she did not attend school between May and August 2016.

8. Allegations were also made that the maternal step-grandfather had sexually abused Y. The allegations were the subject of investigation by SAPOL and Child Protection Services and ultimately there was a concession that the gravamen of the allegation namely, Y’s statement that “Pa Pa licked me all over” was not a reference to the maternal step-grandfather but rather, to having been licked by the dog.

9. Y also made disclosures that the father had choked and strangled her and following a CPS investigation a determination was made that the child appeared to report reliably and in a manner consistent with her age. Families SA (as the organisation then was) became involved when Y sustained a hairline fracture to her skull whilst in the care of the father’s partner Ms G.

10. Ms G has E from a previous relationship and F being a child with the father. E is the subject of a long-term Guardianship Order and has been placed in the care of Ms G’s mother. E spends time with Ms G on a weekly basis.

11. There are serious allegations that relate to Ms G having an extensive criminal history including illicit drug use, prostitution, assault and a recent larceny in 2016.

12. The mother re-partnered with Mr C, but has since ended that relationship. Mr C has a history of violent offending and orders were made on 24 July 2017 that restrict the mother from bringing the children into contact with him. The maternal grandmother is concerned that the mother may have had some contact with Mr C since August 2017. The father alleges in his Affidavit filed 14 December 2017 that advice from SAPOL is that the mother at that time may have recommenced the relationship with Mr C.

13. The mother denies that she continues a relationship with Mr C or that the children have seen him since August 2017.

14. By her Application in a Case filed 14 September 2018, the mother seeks to discharge paragraphs 2, 3, 9, 11 and 12 of the Orders made 21 December 2017. The effect of the application would be to suspend any time that the children would spend with the father or the paternal grandmother.

15. The paternal grandmother is weary of the proceedings, concerned by the ongoing conflict, in particular with the mother and the maternal grandmother and step-grandfather and rejects the continuing allegation that she fails to properly supervise the father’s time with the children.

16. The paternal grandmother no longer seeks compliance with paragraph 9 but is prepared to supervise the father’s time for a period of up to four hours.

17. The most recent Family Assessment Report is dated 2 February 2017. The family consultant recommended that the mother and father have equal shared parental responsibility and that the children live with the mother and spend time with the father each alternate weekend from Friday after school until Monday morning during school terms and each alternate weekend from 4.00 pm Thursday until 4.00 pm Monday in the short and long school holidays.

18. The family consultant observed that the children loved both of their parents but that they had been exposed to a “significant amount of adult conflict, which has had a negative impact on their emotional and psychological development”.

19. The family consultant was concerned as to the continuing involvement of Ms G given her criminal history, history with Families SA and observations as to her “highly agitated” conduct during a telephone interview.

20. The family consultant attributed primary attachment to the mother and was concerned that the father was “likely to both dominate and unnecessarily confuse co-parenting communication to the children’s detriment by continuing to exert power and control post separation”.

21. It is an unfortunate feature in the children’s lives that the police have been called to X’s school.

MOTHER’S APPLICATION

1. The mother reports that the children last spent time with the father on 26 August 2018 and noticed that the children “were very quiet and seemed withdrawn on the phone”.

2. The mother ascertained that the children had reported to their school counsellor and their separate psychologists that they were in fear of the father and did not wish to spend further time with him.

3. The mother arranged for the children to attend an appointment on 6 September 2018 with their psychologists at H Group. Apparently they have been attending appointments fortnightly for the last two months.

4. The mother’s assessment of the psychologist’s report is that X did not feel safe when spending time with the father because she alleged that the paternal grandmother did not stay with them and was in other areas of the home.

5. The mother relies upon the affidavits of the maternal grandmother and step-grandfather. There is significant history set out in the affidavit which pre-dates the children’s visit on 26 August 2018. The observations of the maternal grandmother and step-grandfather is that the children were fearful of spending time with both the father and the paternal grandmother. They are supportive of the children’s time with the father being suspended. They record Y referring to spending time with the paternal grandmother and the father in the following terms:-

   I just do not want to go with Nanna [at handover]. I try not to get into trouble.

6. And X saying:-

   If you really cared about us why do you make us go?

7. The ICL annexes the reports from each of the children’s treating psychologists at H Group as Annexure “JS-1” and “JS-2” of her Affidavit filed 30 October 2018.

8. Ms J is X’s psychologist. Her report records that X was referred to her in July 2017 by her general practitioner following a court order of 14 March 2017. The nature of the referral was for an “adjustment disorder” and “anxiety”.

9. The history relevant to the child’s presentation was provided by the mother. There have been regular attendances between 9 August 2017 and 26 September 2018.

10. The report highlights a number of remarks made by X that suggest she does not want to see the father and reported that he was mean to her and is derogatory towards the mother.

11. Ms J was not able to comment on any diagnosis or prognosis for X as no diagnostic or formal assessment had been conducted.

12. Dr K provides therapeutic assistance to Y. Y attended on a total of 10 sessions between 11 October 2017 and 17 October 2018. On each occasion she was accompanied by the mother.

13. Dr K records that:-

    At a number of the sessions, [the mother] expressed distress regarding what she termed “bullying” behaviour directed to her from Y’s biological father and paternal grandmother, including questioning her as to why the children were attending sessions. …

14. The mother reported that Y had displayed “OCD-like” anxious behaviour which she attributes to the child not wishing to spend time with the father and the paternal grandmother. Y had also expressed distress at separating from the mother and going to the maternal grandmother and step-grandfather. 

15. At a session on 9 August 2018 Y reported that “she didn’t like going with her [maternal grandparents] but didn’t know why.” On 22 August 2018 Y also alleged that her father was mean and that “he hurts me and chokes me on the neck” presumably referring to an incident that allegedly occurred in May 2017.

16. The ICL urged caution as to the weight to be placed on the reports from the psychologists. It is notable that if the purpose of the psychological intervention was therapy to restore some resilience to the children in terms of their ability to deal with the ongoing conflict between the parties, then it is surprising that the psychologists did not seek to involve the father in the process.

17. The reports are not intended to be family reports and are relied upon not for any report as to therapeutic goals having been ascertained and satisfied, but rather, to report allegations made by the children directed to the father and the maternal grandmother.

AFFIDAVIT OF THE PATERNAL GRANDMOTHER

1. The paternal grandmother seeks to be released from the proceedings as discussed, but sets out her involvement with the children both in terms of the children spending time with her pursuant to the orders, but also her supervision of the children’s time with the father.

2. She provides valuable insight and emphasises that the children and in particular X is under significant influence by the parties. She recollects that X previously thought her mother was a “Bad Mummy” and was terrified that the mother would come and take her from school.

3. She observed that X had experienced panic and anxiety attacks. She considers that X’s reaction to her mother is now similar to her reaction to the father. She considers that X has experienced confusion, stress, anxiety and trauma.

4. She specifically denies any assertion that she has failed to supervise the children’s time with the father. She contends that the children enjoy their time with the father and that they have “fun happy adventures”.

5. She notes that when the children leave the home of the maternal grandparents they are apprehensive but soon settle and enjoy their father’s company.

INTERIM PROCEEDINGS

1. In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the caution that must be exercised with making findings on contested evidence:-

   120As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).

   …

   122In SS v AH [2010] FamCAFC 13 the majority (Boland & Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:-

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   123Later, at [100] their Honours amplified their comments and said:-

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

2. In Deiter & Deiter [2011] FamCAFC 82 the Court considered the proper approach where an assessment of risk was required. At [61] the following appears:-

   … Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

1. The Full Court in Goode & Goode (2006) FLC 93-286 considered the principles applicable to parenting and interim proceedings now affirmed by the High Court in MRR v GR (2010) 240 CLR 461.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the principles underlying Part VII of the Act.

3. Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the children are the paramount consideration.

4. The Court is then obliged to consider the provisions of s 60CC as to the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3).

5. In particular, and relevant to the current proceedings, when applying the considerations as set out in s 60CC(2), taking into account the provisions of s 60CC(2A) the Court is to give greater weight to the need to protect a child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

6. Section 61DA of the Act provides that when making a parenting order the Court must apply the presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility, but that the presumption does not apply where:-

   (a)There are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence;

   (b)In interim proceedings if the court considered it would not be appropriate in the circumstances for the presumption to be applied when making that order; and

   (c)The court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

PARENTING CONSIDERATIONS

1. The relatively recent history supports a finding that the children enjoyed a good relationship with their father and had a strong attachment to him. The recommendations of the family consultant lend weight to that proposition.

2. The importance of the children’s relationship with the father was recognised by the mother in the 2015 consent orders.

3. The orders sought by the mother would sever the children’s relationship with their father pending final determination of the proceedings. The mother’s application is predicated on statements allegedly made by the children to the maternal grandparents and to their psychologists.

4. There has been no attempt made to explore what may have prompted the children to make the statements as recorded and I accept that the conduct of the parties has placed the children in an invidious position. They receive input from their parents and grandparents.

5. The maternal family are in high conflict with the paternal family.

6. The circumstances are made more complex by allegations in respect of the mother’s previous relationship with Mr C and the father’s current relationship with Ms G.

7. The ICL submits that is in the interests of the children to have a relationship with their father and that the mother’s allegations are without substance and detail.

8. I am obliged to make orders that protect the children. I am satisfied that if the father’s time with the children is supervised by the paternal grandmother then the children will not be at risk.

9. The involvement of the paternal grandmother was carefully considered by Judge Kelly in her Order of 21 December 2017. Her Honour has sufficient confidence in the children’s grandparents that each of them secured separate orders for the children to spend time with them.

10. Whilst the paternal grandmother no longer wishes to be a party to the proceedings and thereby does not seek the continuation of orders that the children spend time with her, she is prepared to supervise the father’s time with the children.

11. The Court is entitled to have confidence that she will discharge her obligation to do so noting that the brochure from the Legal Services Commission that sets out the obligations of a proposed supervisor does not mandate that a supervisor must be present at all times.

12. I have given careful consideration to the primary and additional considerations under s 60CC of the Act and find that it is in the best interests of the children to retain a relationship with their father and that any risk can be ameliorated by the preparedness of the paternal grandmother to supervise the father’s time.

13. I propose to discharge the orders that provide for the children to spend time with the paternal grandmother and to put in place orders that the children will spend time with the father for five hours each alternate weekend alternating between Saturday and Sunday subject to it being supervised by the paternal grandmother.

14. The ongoing hostility between the families and in particular the father and the maternal grandparents lends support to the father's proposal that handovers should occur at a neutral location and in this case McDonald’s Restaurant, B Street, Adelaide.

15. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 December 2018.

Associate:

Date: 13 December 2018