Mandel and Williamson

[2011] FamCA 904

FAMILY COURT OF AUSTRALIA

MANDEL & WILLIAMSON [2011] FamCA 904

FAMILY LAW – CHILDREN – Interim proceedings - Live with – Spend time with – Supervised time - DNA typing parentage testing – Drug and Alcohol testing – Family violence allegations

Family Law Act 1975 (Cth)
Family Law Act Regulations 1984 (Cth)

Goode & Goode (2006) FLC 93-286

B & B (1988) FLC  91-948

APPLICANT: Mr Mandel

RESPONDENT: Ms Williamson

FILE NUMBER: PAC 4527 of 2011

DATE DELIVERED: 17 November 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: 17 November 2011

HEARING DATE: 17 November 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Maait

Norris Somers
P.O.Box 616
Parramatta   NSW 2124

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT:

Ms Gordon
Pearson Family Lawyers

DX 11532
Sydney Downtown

Orders

The orders that I make are these:

(1)That until 4.00 pm on the next date the matter is before the Court the subject child B born … 2009 shall live with the mother.

(2)That until 4.00 pm on the next occasion the matter is before the Court the father shall spend time with the subject child as follows:

a.   For the first two occasions of such time between the hours of 12.00 noon and 4.00 pm each Saturday.

b.   Thereafter and subject to any further requirement for urinalysis testing by the father, from 8.00 am until 4.00 pm each Saturday.

c.   For the purpose of such time the mother shall deliver the child to the father or cause the child to be delivered to the father at the commencement of each period and the mother shall collect or cause the child to be collected from the father at the conclusion of such period of time.

d.   That the father’s time with the child shall at all times be in the presence of one or other of Ms C or Mr D.

e.   These Orders shall not be construed as preventing the paternal grandmother from being present for the whole or any part of those occasions.

(3)That before the first period of time the father is to spend with the child he is to undergo urinalysis testing at his expense and provide the results to the mother’s legal representatives.

a.In the event such testing reveals the presence of any illicit substance in the father’s system then the matter is to be relisted upon forty-eight (48) hours notice and until the matter has come before the Court any time with the child is to be suspended.

b.In the event that the test reveals no illicit substances in the father’s system then the first period of time shall be the Saturday immediately after the production of that urinalysis report.

(4)That on the 25 December 2011 the father shall spend time with the child from 2.00 pm until 8.00 pm. The mother shall deliver the child to the father’s residence and the mother shall collect the child from the father’s residence at the conclusion of time.

(5)That there be no order restricting the father from driving any motor vehicle with the child provided the child is in a proper and approved restraint device.

(6)That the parties undertake parentage testing and to that effect I make orders in accordance paragraphs 1 and 2 of the orders sought in the father’s application under the heading “Interim Orders sought by the Father”, as follows:

1.   That the parties submit to DNA-typing parentage testing by E Pty Ltd a laboratory accredited to carry out parentage testing procedures under the Family Law Act Regulations 1984 to determine if the Applicant, Mr Mandel, is the father of the child, B born on … 2009 (“the child”)

2.   That the parentage testing referred to in order 1 take place under the following terms and conditions:

a)   The Applicant will meet all the cost of the parentage test report.

b)   The Respondent will do all acts and things necessary to enable the

parentage testing to be carried out, including ensuring that the appropriate bodily sample is provided by the child as and when required by the said E Pty Ltd and executing all necessary documents within twenty-eight (28) days of the date of these Orders.

c)Within fourteen (14) days of receiving notice of the respondent’s compliance with Order 2(b), the applicant will do all acts and things necessary to enable the parentage testing to be carried out, including executing all necessary documents; providing the appropriate bodily sample on behalf of himself.

(7)That the matter be restored to the list no less than seven (7) days after the DNA-typing parentage test results are made available to each of the parties.

(8)That the father be responsible for the cost of the parenting testing in its entirety.

(9)That the father, in addition to the urinalysis testing that I have provided for prior to the commencement of any time with the child, undergo a urinalysis test within twelve (12) hours of being notified by the mother’s legal representatives of the requirement that he undertake such testing, upon the following conditions:-

a.That the mother’s legal representatives request that the father undertake such tests upon twelve (12) hours notice on no more than two occasions per month.

b.That such testing shall be at the father’s expense in its entirety.

c.That the test results are to be made available to the mother’s legal representative immediately the test results are known.

d.In the event such testing reveals the presence of any illicit substance in the father’s system then the matter is to be relisted upon forty-eight (48) hours notice and until the matter has come before the Court any time with the child is to be suspended.

e.That in the event that the father does not take the test within the time specified then the matter may be relisted upon forty-eight (48) hours notice and the father will be required to provide compelling reasons why he did not take the test and why time should not be suspended.

(10)That I decline to make any determination as to costs in these proceedings for either today, Thursday 17 November 2011, or Monday 14 November 2011.

(11)That I direct that the parties’ legal representatives attend upon a Family Consultant to obtain a date so that the parties may be interviewed for the purpose of preparing a report to assist the parties to endeavour to resolve this matter.

(12)That liberty is granted to either party to relist the matter upon forty-eight (48) hours notice to the Court in the event of any difficulties.

IT IS NOTED that publication of this judgment under the pseudonym Mandel & Williamson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4527 of 2011

Mr Mandel

Applicant Father

And

Ms Williamson

Respondent Mother

REASONS FOR JUDGMENT

INTRODUCTION

1.This matter came before me on Monday last in a duty list.  It is an application by the father, Mr Mandel, in a number of parts.  He seeks orders for parentage testing, and I say no more in regard to that aspect of the matter than the mother consents to such tests being ordered, but says that the orders for testing that she proposes are perhaps more effective orders that the father’s.  I will return to that shortly.  In addition, the father seeks a suite of orders in respect of him spending time with the parties’ only child, B, who was born in 2009.

2.A very brief history of this matter would seem to indicate the parties were in some form of relationship since about 1999.  They worked together, and the father says they spent a good deal of time together, although not living together, for the next 11 years he says (that being until May 2010).  The mother’s evidence, as it stands, is that the relationship was far less significant than that. 

3.It is the mother’s case that there have been occasions during the period of their relationship, whatever it is, where the father has perpetrated violence upon her.  The father adamantly denies there has been any difficulty with violence.

4.It is also part of the mother’s case that the father has abused drugs.  As I understand it, she has not been in a position to make any direct observation of the father of recent times.  She speaks of his drug use in the past in the strongest possible terms.  She has produced photographs which would seem to me, without explanation, to indicate the father preparing drugs in 2007 and 2008, one would assume for his own use. 

5.The father, as I understand it, says that he does not use drugs at the present moment, and he is prepared to undertake any form of drug testing in order to establish that fact. 

6.The mother also indicates that the father has dealt inappropriately with the child by kissing the child’s genitals and by the manner in which he holds the child.

7.The situation appears to be that the mother has, in the past, allowed the father to spend time with the child, either in the presence of members of her family or at a McDonald’s restaurant for up to two hours in her presence.  The father says this is now the time when the child should move fairly quickly to overnight time with him, and that there is no need for supervision.  The mother says that there is a need for supervision, and has today nominated two members of the father’s family that she says she would accept as supervisors.  The father, for his part, has gone to the trouble of putting on an affidavit by his mother, who is present in Court today, indicating that she would be prepared to be the supervisor.

8.Mr Givney argues against the father’s mother as a supervisor, saying that she does not accept her son is a drug user, and therefore she is less preferable as a supervisor than those nominated by the mother.  Before I deal with the sections of the Act that I believe are appropriate, I must say this - the allegations are strongly made, and they are strongly denied.  The only way that they will be resolved is with a hearing where the evidence of each party can be taken and tested. 

9.I will make orders as to the father’s time with the child, until the matter can come on for final hearing. I will do all that I can to ensure that the matter comes on for hearing as quickly as possible, when it will then be determined on its merits.

10.However, it seems to me that, on what I have heard to this point, it is going to be a situation at the final hearing of one party being effectively believed as to the allegations made, and the other party being disbelieved.  That is a matter for the parties if they wish to proceed in this fashion. 

THE LAW TO BE APPLIED

11.My concern is the best interests of the child.  This is a parenting matter, and as the Full Court set out in Goode & Goode[1], there are a number of sections of the Act that I must have regard to.  Firstly, I must deal with the objects and underlying principles.  The first object is “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (see subsection 60B(1)(a)).

[1] (2006) FLC 93-286

12.The second object of the Act is that children be protected from physical or psychological harm. The specific wording of subsection 60B(1)(b) is “protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. 

13.Section 60CA says that I must have the child’s welfare as the paramount consideration when making orders. 

14.Section 60CC tells me that there are primary considerations and additional considerations.  The primary considerations, in very similar terms to the objects, are:-

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

15.The first of the additional considerations is subsection 60CC(3)(a), being “any views expressed by the child”. In this case, the child is too young to express any view.

16.The next consideration is the nature of the relationship of the child with parents and other significant adults (see subsection 60CC(3)(b)).  Certainly, the mother has been the child’s main carer.  I am satisfied that the child’s relationship with the mother is a close and loving one.  I am also satisfied that in the limited time that the father has spent with the child, he has established a relationship with the child that is worth nurturing, and indeed, expanding.

17.The next consideration is the willingness and ability of each of the child’s parents to facilitate a close and continuing relationship between the child and the other (see subsection 60CC(3)(c)).  In this respect, the father seems to be untested.  On what I have read of the material so far, the mother has indeed allowed the father to see the child, but has done so on very strict terms and conditions in accordance with what she apparently believes is necessary and appropriate.

18.The next consideration is subsection 60CC(3)(d), which is:-

the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

19.If I were to make the orders that the father seeks, time with the child would progress fairly quickly to overnight time.  That may be too quick in all the circumstances.  However, I am satisfied the effect of an extension of time that the father spends with the child would, on what is before me, not seem to be such that would adversely affect the child, provided that there were, at least for the initial time, some safeguards put in place.

20.Subsection 60CC(3)(d) says that I should consider:-

the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

21.In this case, the mother has offered to deliver and collect the child after periods of time with the father.  I propose to take the mother up on that, and I propose to indicate that, in the event that she does not deliver the child, save and except in proper and serious circumstances, then the matter may come back before me. 

22.I then turn to deal with the capacity of each of the child’s parents (see subsection 60CC(3)(f)), which I will couple with the attitude to the child and other responsibilities of parenthood (see subsection 60CC(3)(i)).  I am satisfied the mother has a close and loving relationship with the child.  I am satisfied the child, however, has an appropriate relationship with her father, having regard to the limited amount of time she has spent with her father to date.  I am satisfied that the father, for extended periods of time in comparison to what is presently happening, can care for the child and can indeed ensure that the child receives that which she needs in his care.

23.I have read emails produced to me.  It seems to me that the father has indicated quite clearly that he wants to be a part of the child’s life, and the mother does not seem to accept this as a probability or even a possibility.  She seems to feel, on the emails that I have read, that it is for her to say when, where and how. 

24.The issue of family violence (see subsection 60CC(3)(k)) is in this case something that involves allegation and absolute denial.  I am not in a position to make any concluded finding in this respect. 

25.Subsection 60CC(4) indicates to me that I must have regard to the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent. I have dealt in part with the matters raised in this subsection earlier in these reasons.  I am concerned that I do not know with precision the situation regarding the father’s support of the child.  However, at this time, that is not as important as other factors I am required to consider.

26.I then turn to section 61DA, to which I have been taken by Mr Maait.  As he submits, that section creates a presumption that parents should have equal shared parental responsibility.  The father in his application seeks joint shared parental responsibility.  The presumption created by the section does not apply if there are reasonable grounds to believe a parent or child has been involved in some form of abuse.  Further, the presumption can be rebutted if the Court is satisfied that it would not be in the best interests of the child’s parents to have equal shared parental responsibility. 

27.Subsection 3 of that section says “(w)hen the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate”.

28.In any event, subsection 61DB makes it clear that if an interim parenting order is made “the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.”

29.I am, on the evidence as it stands before me, not able to promote the mother’s evidence over the father’s to make a finding of any form of family violence.  I am, however, satisfied on the evidence that has been presented to me by both parties that, at least in the short-term, and until this matter is further investigated and appropriate reports are obtained as to the parents’ capacities, that to have these parties required to consult about matters concerning the child would be an intolerable situation for both of them.  Such a situation could only carry over to have an adverse effect on the child.

30.Accordingly, I do not propose to make an order for equal shared parental responsibility, but I leave in place the statutory provisions that say each party has parental responsibility for the child. 

31.I do propose to order that, pending further order, the child live with the mother, which is indeed that which the father contends for.  Even though I have found the presumption rebutted, it is necessary for me to then consider whether I should make an order for equal, or significant and substantial time.  In this situation, the child, for whatever reason, has been limited to date in the time she has spent with her father.

32.I am satisfied that it would not be appropriate for the child to spend equal time with each parent.  The father, as I say, does not seek this, and certainly, the mother does not in any way suggest it would be appropriate.  Accordingly, I must consider whether the child should spend significant and substantial time with the child.  Significant and substantial is not simply a matter of time.  It means a situation whereby the parent with whom the child does not live is able to have as large an input into the child’s life as possible, and spend such time with the child as can be, indeed, arranged, subject always to the child’s best interests.

33.Having considered these matters, it seems to me that the situation is best managed by allowing the father for three weekends to have the child for a four hour period, and thereafter, until the matter comes back to Court, that that period of time will be increased to eight hours.  I will make an order that the mother deliver the child to the father and anyone else that I may nominate shortly, and I will order that the mother collect the child or have the child collected (by someone other than herself) at the conclusion of periods of time.

34.I propose to make an order that on Christmas day, the child be delivered to the father at 2.00 pm to allow the mother and her family to have a Christmas lunch, and thereafter to return to the mother at 8.00 pm. 

35.I do propose to order that in the period between now and the matter returning to Court, there will be supervision.  The father, through the very forceful submissions of his advocate, indicates that this is not necessary.  However, there are a number of reasons why supervision is appropriate.  In a decision of B & B[2] of Gee J, as he then was, raised several reasons. The first was whether unsupervised access would impair the custodial capacity of the residential parent. He also raised the following two reasons[3]:

One of those things is to safeguard the father for a period from further allegations of sexual abuse which, on the evidence, could be likely for a period, if access were supervised, and secondly, to give some reassurance to the wife, in her undecided frame of mind, so that she will less believe than she presently does, although it

[76,851]

is not a belief to any great extent, that the father might be guilty of sexual abuse, whatever I might find.

[2] (1988) FLC 91-948

[3] Op cit at 76,850 – 76,851

36.In this case, the first reason for supervised time is the protection of the child involved.  As I say, in this case, allegations are made and denied.

37.The second is to set at peace the mind of the residential parent from whom the child is going.  In this case, I am comforted by the fact that the persons I am considering to appoint jointly and severally as supervisors are persons that indeed have been suggested by the mother herself. 

38.The third reason for supervision is the protection of the person against whom allegations are made.  In other words, with the supervisor present it becomes more difficult for unfounded allegations to be made and accepted.

39.Therefore, I will stand the matter over today.  I will order that the parents undergo the parentage testing and, for no reason other than they are the first orders sought, I will make orders in accordance with those proposed by the father. 

40.I will order that the father prior to any period of time with the child undergo a urinalysis test and make the results of that test available to the solicitors for the mother.  In the event that any of the drugs normally tested for, and they would include cannabinoids, amphetamines, and so on, the standard spectrum of testing are found to be present, then time is not to commence or occur and the matter is to be relisted.  I will grant the parties liberty to restore, in this case on 48 hours notice.  If the test is clear, then the time with the father shall start on the next appropriate day as stipulated in my orders.

ORDERS DELIVERED

41.These orders shall not be construed as preventing the father’s mother from being present for the whole or any part of those occasions of time the child spends with the father.  I decline to make any order restricting the father from driving any motor vehicle with the child provided the child is in a proper and approved restraint device.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 17 November 2011.

Associate:     

Date:              17 November 2011

SCHEDULE OF PARTIES DOCUMENTS

Applicant Father
(a)	Initiating Application filed 26 September 2011
(b)	Affidavit of the father sworn 22 September 2011 and filed 26 September 2011
(c)	Affidavit of the father sworn 14 November 2011 and filed 14 November 2011
Respondent Mother
1.	Response to Initiating Application filed 10 November 2011
2.	Affidavit of the mother sworn 8 November 2011 and filed 10 November 2011
3.	Affidavit of Shirley Williamson (maternal great-grandmother) sworn 8 November 2011and filed 10 November 2011
4.	Affidavit of Vicky Williamson (maternal grandmother) sworn 8 November 2011 and filed 10 November 2011
5.	Affidavit of the mother sworn 17 November 2011 and filed in Court on 17 November 2011