Marino & Marino
[2024] FedCFamC1F 795
•25 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Marino & Marino [2024] FedCFamC1F 795
File number(s): CAC 1870 of 2023 Judgment of: GILL J Date of judgment: 25 November 2024 Catchwords: FAMILY LAW – PARENTING – Interim application by the mother seeking to suggest a new professional service available to supervise her time with the child – Where the supervision service provided in the current orders has a long wait period for new clients and consequently time is not currently occurring – Where the current supervision service was ordered due its ability to ameliorate the significant risk posed by the mother – Consideration of whether suggested service could also adequately ameliorate this potential risk Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 14 November 2024 Place: Canberra Counsel for the Applicant: Ms Davis Solicitor for the Applicant: Legal Aid Solicitor for the Respondent: Litigant in Person Solicitor for the Independent Children's Lawyer: Ms Shavaiz, Infinity Legal ORDERS
CAC 1870 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MARINO
Applicant
AND: MR MARINO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The amended application in a proceeding filed by the mother on 7 November 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
This judgment concerns an application in a proceeding filed by the mother in relation to spending professionally supervised time with the parties’ child, X. The application was made in the context of recent orders made by Judge Hughes on 26 August 2024, that stipulated that any time the mother spend with X be supervised by B Contact Service. At the time of Judge Hughes’ orders, B Contact Service had an estimated wait period of nine months for new clients using their supervision services.
At hearing the mother focussed her application on both a setting out of specific periods of time with X, and the substitution of a newly available professional supervision service, C Contact Service. Although the mother had identified two potential professional support services, at the hearing she sensibly relied on only one, being the one about which there was more information available.
The mother’s application was supported by the Independent Children’s Lawyer (“the ICL”), but opposed by the father. Although at the commencement of the hearing the father sought as his primary position the suspension of all time between X and the mother, during the proceedings he ameliorated this to simply seek that the orders remain as made by Judge Hughes.
Procedural history
These proceedings commenced on 23 October 2023, when the mother made an application seeking final parenting orders.
On 10 November 2023, Senior Judicial Registrar Evans made interim orders by consent providing that X live with the mother and spend unsupervised time with the father for two-hour blocks on Fridays, Saturdays and Sundays with changeover to occur at B Contact Service.
Those orders were discharged by Senior Judicial Registrar Evans on 22 March 2024. It was then ordered that X live with the father and spend time with the mother for three hours on Fridays and Sundays with changeover continuing to occur at B Contact Service.
The mother then filed an application for review of those orders. On 17 April 2024 Judge Vasta made orders that X live with the mother and spend time with father for three hours on Tuesdays, Fridays and Sundays with B Contact Service continuing to facilitate changeover.
Subsequent to this the mother was charged with family violence related offences. Following the mother being remanded in custody, Judge Hughes made orders on 5 July 2024 that X live with the father.
The mother was subsequently released on bail, and on 26 August 2024, Judge Hughes made further orders that X spend time with the mother supervised by B Contact Service. Her Honour also ordered that the proceedings be transferred to Division 1 of the Federal Circuit and Family Court of Australia. When hearing the matter, her Honour made note of the fact that B Contact Service’s wait time was potentially nine months, and noted the potential for further interim proceedings in the event that other appropriate options became available.
Risk associated with the mother
The proceedings before Judge Hughes focussed upon risk to X posed by the mother, and options to facilitate an ongoing relationship between the mother and X without exposing X to harm.
Various instances of conduct attributed to the mother were indicative of a high level of risk, with the peak examples being incidents recorded on video. The most prominent video example being one in which the mother, after stopping her car close to where the father was parked, appeared to heavily accelerate and drive her vehicle at, or near to, the father while he was carrying X across the street. The father asserts that the mother deliberately tried to hit he and X with her vehicle.
This, and other incidents following shortly thereafter, resulted in criminal charges being laid against the mother, and a period in custody followed by release on bail. Since the appearance before Judge Hughes the criminal proceedings have progressed, with the mother being the subject of a number of mental health reports. Those reports did not indicate an increase in the risk posed by the mother. However, a report tendered by the mother indicated a history of “emotional dysregulation, suicidal ideation, and behavioural disturbance, and appears to increase in frequency and intensity when faced with psychosocial stressors.”[1] The report noted that the mother’s circumstances connected to these proceedings are a significant stressor, likely to have amplified the mother’s symptoms (related to Complex PTSD). Although some of the charges were discontinued, charges relating to the incident remained pending at the time of this interim hearing.
[1] Exhibit M5.
The level of risk, including a risk of abduction, led Judge Hughes to reject contact other than professionally supervised by B Contact Service. Her Honour identified the sort of protections available at B Contact Service. Although the mother had proposed other persons to supervise, Judge Hughes rejected such an arrangement in the context of the high risk posed by the mother.
It was against this background of the identification of risk, and the identification of the character of the B Contact Service supervision, that orders were made restricted to time at B Contact Service, even in the face of an expectation that such time may not be able to commence for nine months due to the waiting list.
The mother’s current application identified a different professional supervision service that was not accompanied by the same delay. It is the evidence as to the nature of this supervision that is central to determining whether the orders should be modified to allow this as an alternative to B Contact Service.
The evidence as to C Contact Service
The evidence as to the nature of the protections supplied by C Contact Service was contained in Exhibit M6, being correspondence between the mother’s solicitor and C Contact Service, and additionally in a hearsay assertion by the mother in her affidavit, reporting on a representation made to her by her solicitor.
That representation was that C Contact Service is used by the local government welfare agency for contact between children in care and their parents. The reassurance this was suggested to offer was as to an inference that C Contact Service regularly deals with high risk circumstances within that context.
The correspondence disclosed a pricing schedule based on compliance with a relevant award, and the assertion that “staff members are recruited with a minimum level of experience and qualification in line with the Community Services standards. Staff members are allocated to shifts based in a training matrix depending on individual risks and requirements.” Further there was the description that contact could take place in a contact centre or in the community.
The father tendered a screen shot of the C Contact Service website, alleging that there was no reference to the provision of supervision services.[2] However, it may be considered that the reference to “Therapeutic Contact and Transport” may well cover such ground. The father further relied upon an annual report prepared by B Contact Service and an email from B Contact Service, to seek to emphasise a level of professionalism on the part of B Contact Service in respect of contact services.[3]
[2] Exhibit F2.
[3] Exhibits F5 and F6.
Given the determinations made by Judge Hughes that the mother should spend time with X, but that such time was accompanied by significant risk which could be adequately ameliorated by B Contact Service, but not by the other sources of supervision then suggested by the mother, the reasonably narrow issue here is as to whether sufficient safety has been demonstrated to permit time with the mother being supervised by C Contact Service.
The material produced to show the nature of the supervision by C Contact Service was limited in its capacity to do this. Whilst the use of the service by a government department for children who have been placed in care may indicate some protective capacity, no information as to the nature of cases with which the service was entrusted was given. It is not, for example, known if they are used in cases where children have been removed by reason of neglect, or alternatively, as here, where a potentially high risk of physical violence has been identified. Similarly, the reference to Community Services standards, or to minimum levels of training do not point to a capacity to deal with a potentially high risk of physical harm.
While it should be acknowledged that in this interim phase of the proceedings, no firm conclusion is available one way or another about risk posed by the mother, the presence of possible indicia of high level physical risk, illustrated by the alleged use of a motor vehicle against the father and child, means that the protections offered by supervision need to be sufficient to protect against a risk that may manifest itself in the use of sudden and extreme force. Whilst Judge Hughes was satisfied that B Contact Service was a sufficient protection, I am not satisfied, on the material before me, that C Contact Service provides sufficient protection.
I acknowledge that further material may come to light to indicate sufficiency on the part of C Contact Service or another professional supervision agency, which may in turn warrant a further application.
The mother’s application will be refused.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 25 November 2024
0
0
0