Maillot and Chemin

[2009] FamCA 807

FAMILY COURT OF AUSTRALIA

MAILLOT & CHEMIN [2009] FamCA 807

FAMILY LAW  -  CHILDREN  -  Magellan  -  final parenting orders  -  violence  -  drugs  -  risk if unsupervised time  -  sole parental responsibility

Family Law Act 1975 (Cth)

FATHER: Mr Maillot

MOTHER: Ms Chemin

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2101 of 2008

DATE DELIVERED: 10 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 10 August 2009

REPRESENTATION

COUNSEL FOR THE FATHER: Mr. Pannifex

SOLICITOR FOR THE FATHER: Stephen Phillips & Assoc

SOLICITOR FOR THE RESPONDENT:

Mr. Connley

Connley & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr. Marchetti

INDEPENDENT CHILDREN’S LAWYER: David Stagg Tonkin & Co

Orders

1. That all previous orders and injunctions relating to the children A CHEMIN (formerly C MAILLOT) born … August, 2001 and B CHEMIN (formerly J MAILLOT) born … November, 2004 be discharged. 

2. That the mother have sole parental responsibility for A and B.

3. That A and B live with the mother.

4. That the mother be at liberty to relocate the residence of A and B to B in the State of Queensland at the expiration of six weeks from this date. 

5. That until their relocation to G in Queensland A and B spend time with the father pursuant to paragraph (8) of the orders made herein on 18 July, 2009. 

6. That following the relocation to G in Queensland A and B spend time and communicate with the father as follows :

   (a)in each mid-year school vacation on seven consecutive days, commencing on the third day of the vacation, for not less than six hours on each day, and the times and venues in the Melbourne area be agreed between the parties and the supervisor referred to in paragraph (7) hereof;

   (b)by telephone between 6:30 pm. and 7:30 pm. on each Wednesday and Sunday or, when the mother is able to facilitate it, by Skype or MSM, and the father shall initiate each telephone call or contact by Skype or MSM;

   (c)at such other times and places as may be agreed and it shall be in the mother’s absolute discretion as to whether such other time is supervised (and if so, by whom).

7. That the father’s time with A and B pursuant to paragraph (6)(a) hereof be supervised by the maternal grandfather, or such other person as is agreed between the parties (“the supervisor”). 

8. That the father be restrained from drinking alcohol or using illicit drugs in the 24 hour period before, and during, any time that he spends with A and B or communicates with them. 

9. That the supervisor be at liberty to terminate any period of time if he/she believes :

   (a)the father is affected by alcohol or drugs;  or

   (b)the father behaves in a way which distresses A or B or likely to do so.

10. That the mother provide the father with a copy of each school photograph for A and B and a copy of each school report for A and B as soon as practicable after receipt thereof.

11. That each of the parties advise the other promptly in the event A or B suffers any accident or illness when in his/her care which requires hospital treatment, and the father be at liberty to attend A or B in hospital, subject to the consent of the relevant medical or hospital authorities. 

12. That each of the parties be and are by themselves, their servants and agents restrained from discussing the proceedings or making any negative or derogative comments about the other to A or B or in their presence or hearing.

13. That as soon as practicable after relocation to G in Queensland the mother advise the father of a postal address and telephone number at which he can telephone the children, and thereafter each of the parties advise the other within 48 hours of any change in his or her postal address, telephone number or (if available) email or other electronic address through which A or B may communicate with the father.

14. That the independent children’s lawyer be discharged one month from this date or, in the event a notice of appeal is filed, on determination of such appeal. 

15. That all extant applications be otherwise dismissed. 

16. That these applications be removed from the List of matters awaiting finalisation.

17. That pursuant to s.62B and s.65DA(2), 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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

18. That the reasons for judgment this day be transcribed and copies made available to the parties.

19. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

IT IS NOTED that publication of this judgment under the pseudonym Maillot & Chemin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2101 of 2008

MR MAILLOT

Father

And

MS CHEMIN

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This case concerns the parenting orders to be made for the parties’ children.  Also at issue is the weight to be given to a parental agreement which, the independent children’s lawyer submits, would not be in the best interests of the children.

2. The mother is 44;  the father is 35.  They met in December 2001 and commenced living together in about April 2002.  They separated in 2006.  They have two children, now known as A, who is almost eight, and B, who will be five in November.  At birth, the children’s names were registered as C and J;  the mother changed their names, and hers, after separation. 

3. The parties initially lived in Queensland.  Child Safety Queensland was involved with the family and it is apparent protective workers had concerns about the environment in which A was living.

4. After A’s birth, the parties travelled to Victoria for a holiday and decided to stay in regional Victoria.  B was born in Victoria in November 2004. 

5. The mother was previously married;  she has three children from that marriage.  They live with their father in Queensland, consequent upon litigation.  The oldest child has Kearns-Sayre syndrome – effectively a terminal diagnosis – and requires constant care. 

6. The father has re-partnered since the parties separated.  He has a daughter,  who was about six weeks old when Ms H, the family consultant who prepared a family report, first saw the parties in late November or early December 2008.  Ms H was a bit discountenanced to learn of this child’s existence quite some time after meeting with the father. 

7. The maternal grandfather, who has supervised periods of contact between the father and children, is a psychologist by profession.  He has very considerable experience in dealing with young people, having worked for the Department of Human Services, amongst other agencies.  While he has not undertaken this role as a professional, he brings that experience and expertise to it.  Whatever difficulties they have had in the past, the father appears to respect the maternal grandfather and does not oppose his continuing supervision.

8. Ms. H was also complimentary about the father’s mother and the assistance she has provided. 

Legal principles

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

2. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.

3. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

4. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practicable (s.65DAA(2)).

Litigation History

1. The proceedings commenced when the father filed an application on 10 January 2008 in the State Magistrates’ Court seeking orders for residence and a recovery order.  The mother had fled the home with the children.  Astonishingly, an ex-parte order made on 15 January 2008 provided for the father to have residence of the children, and a recovery order issued.  

2. The children were then with their mother in Queensland.  They were taken from her by Australian Federal Police.  The children saw their mother handcuffed while they were removed and they were then put into foster care until the father could fly to Queensland to collect them. 

3. It is patently clear that, to that point, the children’s lives had not been characterised by any security, stability or consistency.  In the family home they were exposed to violence, drug use and a chaotic environment.  The profound effects of a removal from a parent in those circumstances tend to resonate throughout children’s lives and the lives of the parent from whom they were taken, but also through the litigation.  When litigation commences in that way it often becomes extremely polarised.

4. On 26 February, 2008 the mother filed a response in which she sought sole parental responsibility, that the children live with her and that the father’s time with them be supervised at the S contact centre.  She also sought orders relating to illicit drug use and psychiatric assessment. 

5. On 26 February 2008, orders were made which provided that, until further order, the mother have sole parental responsibility for A and B and that they live with her.  Until further order the children were to spend time with their father from 10.00 am. to 4.00 pm. on every Sunday, such time to be supervised by the paternal grandfather, and, when a contact centre became available, by a contact centre, at times nominated by the centre.

6. On 26 February, 2008 an independent children’s lawyer was appointed.  Both parties were required to undergo psychiatric assessment.  The case was then assessed for suitability for the Magellan stream.  Subsequently, orders were made for intervention by the Department of Human Services and the DHS file was subpoenaed.  The mother was enjoined from removing the children from Victoria until further order.  At that time, the mother’s evidence was of very significant violence directed at her and in the presence of the children and of sexual abuse of the children. 

7. The mother filed a form 4 notice of abuse on 27 May 2008.  In it she alleged, amongst other matters, that the children had been physically abused by their father;  he had masturbated in their presence;  he had exposed them to pornography;  he taught B to masturbate and had him masturbate in his presence;  and he sexually assaulted A.  In addition, she alleged significant violence directed at her, often in the presence of a child or children.  Such conduct, if found to have occurred, is as abusive to the child or children as it is abusive to the adult victim.

8. It is quite clear from Ms H’s reports that the children were very, very fortunate to have their paternal grandmother and maternal grandfather involved in their lives.  While partisan to their respective child’s side, each was able to maintain a degree of objectivity, and provided stability and safety for the children from time to time.  It is very encouraging to read that evidence of child-focussed grandparents;  the importance of their support cannot be overestimated. 

9. Initially, the mother’s father supervised a number of periods of time between the father and children.  Some 12 of 20 visits were cancelled;  one did not occur because the children were unwell however on the others the father did not arrive or made some excuse for his non-appearance.

10. Subsequently, the father saw the children at the S Contact Centre.  Three reports from Ms. T of S Centre are before the court.  On the credit side, the court can find, based on those reports, that the children love their father and enjoyed spending time with him in that safe environment.  On the debit side, it seems that the father often arrived late and too many sessions were cancelled by him. 

DHS Involvement

1. At the request of the court, DHS prepared a report, dated 10 July, 2008.  The report notes four prior involvements with the family.  It outlines a history of domestic violence perpetrated by the father against the mother in the children’s presence, and details the sexual abuse alleged.  DHS, too, had trouble contacting the father.  At that time, DHS workers substantiated both physical and sexual abuse of A by her father.  There is reference to disclosures made by her.  Disclosure is a word that means different things to different people but A spoke of things she said were done to her, to CASA workers and SOCAU police. 

2. It was the recommendation of DHS that the children’s time with the father be supervised at a contact centre rather than by a family member, and that is what, in due course, occurred.  It had been reported, when a family member supervised, that the father had said something to the children about them returning to his care;  A had been adversely affected by that and had nightmares about it. 

Psychiatric evidence

1. Dr K prepared psychiatric assessments of each of the parties, which were filed in late November 2008.  He did not identify any major psychiatric issues.  He described the father as having an immature personality disorder;  he said the father :

   “is in denial with regard to his emotions and behaviour patterns and, as such, little can be given to him except supportive measures through his local doctor together with psychotropic medication.”

2. The mother was described as a woman who appears to have a conscientious attitude, and who has had difficulties in coping in her adult years.  Dr. K said, with perhaps a degree of understatement, that it appears the mother chooses partners who have not suited her.

Family report

1. Ms H’s family report is thorough and cogent.  It details what could be described as a toxic relationship between the parents, characterised by drug abuse, domestic violence, emotional abuse, and itinerant lifestyles.  Both of the parents tended to minimise their own contributions to that relationship and the environment in which the children lived.  Ms. H refers to Victoria Police records of attendances at the home, which paint a grim picture. 

2. Ms H concluded that the children had been exposed, over a long period of time, to violence, drug use and an associated dysfunctional lifestyle, with chaotic arrangements, sudden and frequent separation from their care givers, and ongoing insecurity and uncertainty about their future care.  Ms H noted that both parents presented a compelling and convincing narrative of their family life.  Both predominantly located themselves in the role of victim and identified the other as the perpetrator. 

3. It is of great concern that A was observed in her play by Ms H to enact themes of destruction, fear and harm, consistent with the experience of children who have been traumatised by exposure to violence.  As Ms. H noted, A and B may have been able to have a different experience with their father after separation, due to the constraints of supervision, and the removal of the tensions and violence inherent in their parents’ relationship.  In the supervised environment, they could act in a much more spontaneously affectionate way with him. 

4. Ms. H recommended, pending a final hearing and determination of the allegations of abuse and violence, that the children should continue to live with their mother.  They should undergo therapeutic counselling and contact should continue at the S contact centre, with consideration given to including the paternal grandmother in those visits.

More recent developments 

1. On 29 January 2009, after the release of the family report, the father filed an amended application in which he sought equal shared parental responsibility, that the children live with him, and that they spend alternate weekends, half school holidays and special occasions with their mother.  The mother had earlier confirmed that she would be seeking to relocate to Queensland to be close to her other children and, in particular, to her oldest child, who is disabled.  I note that a number of allegations made by the mother relate to the father’s alleged behaviour to her other children.  In his amended application the father sought an order restraining both parties from moving the children from Victoria.

2. An order was then made for an updated family report and for a further report to be obtained from the contact centre.  The father provided a certificate from a psychologist to Ms H, advising he would not be attending.  It is a bit hard to work out why;  a lack of volition is probable.  The mother learnt of this, and did not attend upon Ms. H with the children.  The court thus does not have the benefit of an updated report but the first report is only some eight months or so old. 

3. On 20 July, orders were made for each of the parties to file a detailed minute of orders sought at the trial.  At the direction of the court, the registrar stressed the importance of complying with trial directions.  The litigation commenced in January 2008.  Litigation is exhausting to parents;  it is a significant stressor and can impact on their capacity to parent their children.  Courts are often criticised for delays, but it can be surprisingly hard to get litigants to confront a trial. 

4. The mother filed a lengthy affidavit on 14 May.  An updated report prepared by Ms T was filed on 27 July.  The court contacted the father’s solicitor a number of times, stressing the need to file an affidavit of evidence-in-chief and trial documents.  None was filed. 

5. The court is thus in the position that it has no evidence-in-chief from the father, an affidavit of evidence in chief from the mother, and evidence from Ms T, Dr K and Ms H.  The mother’s evidence is not contested.  There is little point in allowing counsel for the ICL to cross-examine the mother in these circumstances.  He cannot have instructions about most matters referable to facts in issue.  He could trawl through subpoenaed material and put to her events of which there is a record but much of that material is before the court, through Ms. H’s report.  Such cross-examination might show that the mother was more implicated in the dysfunction in the household, but that does not necessarily mean that she was not the target of the abuse to which she has deposed. 

6. Counsel for the father has acted properly and professionally.  He told me he has spoken with his client a number of times today and been told that the father is, and I use his words, “battle-wearied”;  the father feels he cannot continue and must prioritise his commitment to his new family.  It is put that he still wants to see A and B and that he would be happy to have his time supervised by the maternal grandfather.  Counsel’s instructing solicitor was not in receipt of instructions for a lengthy period and had difficulty contacting the father to obtain such instructions as he now has.  The father’s instructions are that he will not participate in the case any further.  He wants “to move on”.  From the children’s perspective, he might as well say he doesn’t care. 

Orders proposed by mother and father

1. The court has before it a minute of an order which the mother and father would be content to see made by the court.  Apparently it was negotiated between the parties’ solicitors without advice to or input from the ICL.  It provides for the mother to have sole parental responsibility for A and B and for the children to live with her.  It allows the mother to relocate the children’s residence to G in Queensland in six weeks’ time.  Until then, the father would continue to see A and B at the contact centre, pursuant to the order made on 18 July, 2008.

2. The minute then provides for the father to spend time with the children on seven consecutive days in the mid-year school vacation in each year, for periods of not less than six hours on each day, supervised by the maternal grandfather.  It provides for contact by telephone, Skype or MSN between 6.30 pm. and 7.00 pm. each Wednesday and Sunday, with the father to instigate the call, and that there be such other contact as agreed.  Orders would restrain the father from drinking alcohol or using illicit drugs 24 hours before, or during, any time he spends with the children or speaks with them. 

3. The minute says nothing of the supervisor’s capacity to stop a contact visit if the father were affected by alcohol or drugs, or, indeed, behaved in a way which the supervisor believed was contrary to the best interests of the children.  Without such an order there is little point in supervision. 

4. The proposed orders provide for the mother and father to undergo “individual post-separation counselling”;  I cannot say what they had in mind.  It may be a parenting after separation course or may be individually targeted therapy. 

5. A number of the proposed orders are of concern to the ICL.

6. The first provides that the father’s time with the children “transition” to unsupervised day time “in accordance with the recommendation of the children’s counsellors”, and subject to the father providing a report from “a treating psychologist or psychiatrist, and medical practitioner that he is not abusing illicit substance or alcohol, is mentally well, and does not represent a risk to the children”.  He would also have to provide the results of a supervised urine drug test confirming he has not used illicit substances;  the order provides for the test to be performed not less than five, nor more than ten, days prior to the time he is to have unsupervised time, and within 24 hours of being asked to attend for testing by the mother’s solicitor during any period he is having unsupervised time.

7. No doubt the parties have done their best to negotiate in good faith and think they can live with orders on these terms.  However, I share the ICL’s concern.  The children have been receiving counselling in Victoria but they will move to Queensland in six weeks time.  They may need further counselling there for a period, but it is to be hoped that does not continue indefinitely.  As they approach certain milestones in their lives they may need to access assistance from a professional, be it a school counsellor or private psychologist.  As long as their grandfather is there, he will be able to give their mother, and the children, advice about that.  However, it is unlikely (and almost certainly undesirable) for them to maintain counselling sessions for years into the future.  If they do not each have a “counsellor”, there will be no-one to recommend a move to unsupervised time. 

8. Second, the proposed order assumes the father has, and continues to have, a treating psychologist or psychiatrist.  The father may be seeing a psychologist now, although the report to which his counsel referred, and to which Ms. H refers in her updating report, does not give one a huge amount of confidence.  Apparently, his psychologist or psychiatrist, and his medical practitioner, would all need to certify to his lack of drug use, his mental health and, very importantly, that he does not represent a risk to the children.  The court has no evidence which could allow some assessment of the individuals in question.  The court is being asked to make orders which would put in the hands of unknown professionals, the decision as to whether the father is or is not abusing illicit substances or alcohol, is mentally well, and does not represent a risk to the children. 

9. In the 24 years I have been hearing these cases, I have read many reports from treating professionals, for whom the court can have considerable respect.  Every now and then, unfortunately, a therapist or medical practitioner takes a partisan view, and acts as a mouthpiece for a party rather than with professional objectivity.  More importantly, it is a brave professional who will certify that a person does not present a risk to a child, absent access to a wide range of material and a sound professional relationship with the person assessed. 

10. Thus, the first of the ICL’s concerns is the lack of certainty of the review provisions (that is, the circumstances in which unsupervised time could occur) and the potential for the children to be exposed to risk. 

11. The ICL is also concerned that the proposed orders provide for only one period of time per year for two children who are very little, unless the parties can agree otherwise.  The court would not normally be told of matters discussed in settlement negotiations but the draft minute tendered includes a number of potential orders not now pressed and all parties are content for the court to note them.  At one point it was proposed there would also be time in the school term holidays and in the Christmas school holidays in Queensland.  Thought was given to using the Gold Coast Children’s Contact Service;  the mother would pay the children’s fares from G to the Gold Coast and the father would be responsible for his own travel and accommodation in Queensland. 

12. When the orders were tendered by counsel for the mother and father, who both supported them, that paragraph was deleted.  There is no evidence from the Gold Coast Children’s Contact Services.  It is a long time since I sat in Queensland, but the court would be very surprised if a contact service anywhere was able to supervise periods as lengthy as those considered in the deleted paragraph.  No doubt for that reason, the mother has proposed that her mother, the maternal grandmother, who lives in Queensland, would be prepared to supervise the father’s time with A and B, if the father were prepared to travel to Queensland.  On this scenario, the children would come to Melbourne for time in the mid-year break, paid by the mother, and the father would be able to spend time with them in each of the other school holiday periods in Queensland, at his expense.  In Victoria the maternal grandfather would supervise;  in Queensland the maternal grandmother would supervise.  Both are in court today. 

13. Counsel for the father has told the court of his client’s instructions that he cannot afford to travel to Queensland.  That is a blanket statement;  he can afford no such travel, however infrequent.  Further, he does not trust the maternal grandmother. 

14. The father is assessed to pay the minimum child support for A and B and the mother does not receive that assessed figure.  The father proposes (as does she) that she have sole parental responsibility for the children.  It is probable that sole financial responsibility for the children will be hers, too.  In Queensland she has three other children, one of whom has special needs and a very limited life span.  The court could not find she has the capacity to pay for the children’s travel to Victoria more than once a year. 

15. The court must be concerned about the attitude of the father.  His counsel has done everything possible to lead the court to a different conclusion but I must find his attitude is not indicative of a parent with the capacity to put his children’s welfare ahead of his own.  The court would be cautious about forecasting that the father will spend even the time proposed with the children, as years go by.  That is greatly to the children’s detriment. 

16. This is a case in which the mother’s evidence is of very significant violence directed against her.  She has not been the perfect parent, and she probably would be prepared to concede that fact.  She was not able to protect her children from the violence which they saw inflicted on her and, on occasions, on them.  That is probably a cause of great sorrow to her now.  The court needs to acknowledge the evidence of the problems the mother had with parenting in Queensland, the significant involvement of the Queensland Child Safety Department and the evidence of DHS involvement in Victoria.  Other evidence justifies an inference that, away from the destructive and dysfunctional relationship with the father, she has been able to build on her parenting skills, with the support of family and some professional assistance.  Importantly, the mother is prepared to do what she can to ensure the children know their father and know they have a father, provided that can be done in a safe environment. 

17. I share the ICL’s view that the time proposed by the mother and father is not optimal.  It is unfortunate the children will not see their father more often, particularly given the mother’s preparedness to foster a relationship in the face of her own experience of violence.  However, the court can only do what it can with the evidence before it;  it cannot remodel parents or pretend they will act in ways inconsistent with the evidence.  It is in these children’s interests that they have an opportunity to spend time with their father once a year, communicate with him by phone and, in due course, on the net and by Skype.  Perhaps he will seek to see more of them in the future.  I am satisfied the mother will do what she can to foster the relationship. 

18. Having regard to the significance of these allegations, and the father’s refusal to contest them before me, I am not prepared to make orders for unsupervised time, or put that decision in the hands of people who now have no professional relationship with the father and who would not necessarily have access to the breadth of material before the court.  In particular, they may not know of the profoundly damaging effect the parental violence has had on the children. 

19. The court has confidence that, if the mother is provided with information which she believes render it safe, she will allow some unsupervised time in the future.  She will be in a better position to make that assessment than a psychologist who the father sees once or twice and provides a report, or a medical practitioner to whom he spins a tale. 

20. These orders will not be made by consent, because I accept the submission of counsel for the father that his client will not participate in the case any further if the orders he sought are not made.  It is a matter for the father whether he has the contact I will order, which is in the terms initially proposed by him, but absent the provision he sought for a “transition” to unsupervised time. 

21. In making these orders I am mindful of the legislative provisions which encourage parental agreement and co-operative parenting.  However, the best interests of A and B are paramount and their protection must be the priority.  Having found that some of the orders proposed have the capacity to expose them to unacceptable risk, the court cannot abdicate its statutory responsibility. 

I certify that the preceding
57  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.