Martinovich and Martinovich
[2005] FMCAfam 710
•7 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARTINOVICH & MARTINOVICH | [2005] FMCAfam 710 |
| FAMILY LAW – Children – ex tempore decision – meaning of order that third party be “in substantial attendance” during period of contact or residence – “substantial attendance” differentiated from “supervision” – elements of “substantial attendance” might differ according to facts of case – conclusion that “substantial attendance” requires third party to be physically present for approximately 75% or 80% of each contact period. |
| Banvard & Knowles [2005] FMCAfam 140 Schnoor & Antrobus, unreported decision MLF 4135 of 2003 Bieganski (1993) 16 FamLR 353 |
| Applicant: | MR MARTINOVICH |
| Respondent: | MS MARTINOVICH |
| File Number: | MLM 7558 of 2005 |
| Judgment of: | Walters FM |
| Hearing date: | 7 December 2005 |
| Date of Last Submission: | 7 December 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 7 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms Koelmeyer |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondent: | Mr Atkinson of Counsel |
| Solicitors for the Respondent: | Knight & Associates |
| Counsel for the Child Representative: | Ms Hamilton |
| Solicitors for the Child Representative: | Victoria Legal Aid |
IT IS NOTED that publication of this judgment under the pseudonym Martinovich & Martinovich is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 7558 of 2005
| MR MARTINOVICH |
Applicant
And
| MS MARTINOVICH |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
The question for determination is the meaning of an order that was made in this court on 24 October 2005.
In the brief time that has been available to the court, I have considered the submissions of the parties, including the child representative, and have formed a view.
Background
The husband was born in 1962, and the wife in 1962. They commenced living together in or about 1989 and married in 1990. They separated on 6 August 2005.
There is one child of the marriage — [C], who was born in 1996.
Each of the parties has made serious allegations against the other. For example, the husband asserts that “ … the wife is currently mentally unstable and poses a severe risk to the child if she has unsupervised contact … because of her history of attempted suicide and alcohol abuse …”. The wife, for her part, asserts that the husband and his family have “ … a culture of domination and interference”, that the husband was generally unsupportive after the wife miscarried in 2001 and that he caused bruising to her when he attempted to physically remove her from the house in April 2005.
On 24 October 2005, various interim orders were made in this court.
It is the meaning of one of those orders that falls now to be determined by the court.
“In Substantial Attendance”
The relevant order is contained in paragraph (1)(c) of a minute of proposed orders handed up to the court on 24 October 2005. That paragraph is as follows:-
The brother of the wife, Mr P, and/or Ms P be in substantial attendance during all periods of residence of the child with the wife.
The term "substantial attendance" has caused problems for the parties, and requires consideration by the court. The parties disagree as to its meaning and effect. Correspondence has passed between them. The husband has seen fit to threaten to terminate contact unless, in effect, the brother of the wife and his wife, to whom I shall refer as Mr P and Ms P, are present at all times whilst contact takes place. The husband describes them as “supervisors”.
Clearly, the order cannot be read in a vacuum. It is part of a suite of orders which indicate in their terms when the child will live with the wife and when the child will live with the husband. In essence, the arrangement is that the child will spend the majority of her time with the husband.
Correspondence is exchanged
In a letter dated 25 October 2005 — literally the day after the orders were made — the solicitors for the wife endeavoured to interpret the meaning of the expression "substantial attendance". They wrote as follows:
"Substantial" means of a considerable size or value; of considerable amount; of ample or considerable amount, quantity, size, etc.
"Supervise" means direct or oversee the performance or operation of; to watch over so as to maintain order, etc; superintend, oversee; to oversee (a process, work, workers, etc) during execution or performance.
The letter continues:-
The contact orders made yesterday require that Mr P and/or Ms P be in “substantial attendance” when our client has contact with [C]; they are not required to “supervise” our client's contact with her daughter nor has contact been designated as “supervised contact”. Bearing in mind the definition of "substantial" above, in our view this requires that Mr P and/or Ms P be present for most of the time and for most contact periods. It does not, we believe, preclude our client from being alone with [C] for some of the time over contact periods, nor does it require that [C] be “observed” by Mr P and Ms P at all times. At such our client would be able to collect [C] from school and drive with her to the former matrimonial home or to Mr P and Ms P's home for contact, take [C] shopping or to the movies without Mr P and/or Ms P being present and so forth.
The solicitors for the child representative were asked their view of the meaning of the expression. The child representative had not been appointed at the time that the orders were made on 24 October. In a letter dated 29 November 2005 addressed to the solicitors for each of the parties, however, Victoria Legal Aid wrote:
I have spoken to Victoria Legal Aid's special counsel, Ms Evelyn Bender, whose view is similar to mine, and that is, that the requirement for Mr P and/or Ms P to be in substantial attendance is not supervision and that it does not require them or either of them to be present with the mother and child at all times. While I am not aware of and have not been able to locate any case law on point, from my discussion with special counsel, it is my view that the mother is, for example, able to collect the child from school, attend the pictures or zoo and go shopping without either Mr P or Ms P being present and that likewise, Mr P and Ms P are able to leave the mother and child at home for similarly short periods.
Limited Time Leads to Limited Research
I have also endeavoured to carry out some research as to the meaning of the term "substantial attendance". I have had very limited success in the very short time available to me. Two cases, however, shed some light on the meaning of the term.
The first — and probably least significant — is a decision of Bennett FM, (now Bennett J) dated 29 March 2005 in Banvard & Knowles [2005] FMCAfam 140. The only relevant passage in that judgment appears at paragraph 28, where her Honour said:
The mother sought an order that the father be in substantial attendance during contact periods. The father does not oppose that order. However, inasmuch as I characterised it to him as meaning that he be present for at least one half of each contact period, I suspect that what the mother sought was a protection that goes beyond the order that was drafted on her behalf.
It is clear from that passage that her Honour's view of the meaning of "substantial attendance" was that the person who was to be in substantial attendance had to be present for at least one half of each contact period.
The other decision is that of Morgan J in Schnoor & Antrobus. It is an unreported decision in case numbered MLF 4135 of 2003. The date of the judgment is 17 March 2004. The order in that case was that contact was to be supervised by the child's paternal uncle, who shall —
be in substantial attendance during the contact period.
In paragraph 4 of the decision, her Honour said:
It was common ground that the consent orders to which I have referred were made against a background of serious concerns about the father's mental health. He conceded that he had suffered from a mental health condition. I accept that at the time the orders were made the mother had genuine concerns about the father and his ability to care for the child on his own and hence the order for supervision.
In paragraph 12 of the decision, her Honour said:
As counsel for the father submitted, correctly, the wording of the order for supervision is unfortunate. It provides for supervision and also for substantial attendance. Normally in my experience an order would provide either for supervision or for substantial attendance. Further, I am not satisfied that the mother has made out that the supervisor was not in substantial attendance, neither has she satisfied me that she had reasonable grounds to believe that the child's health or safety was threatened if indeed the father's brother and his wife went out to dinner.
Schnoor v Antrobus concerned a contravention application. It is clear from her Honour's comments, however, that she saw a difference between an order for supervision and an order for substantial attendance. Indeed, the expression “substantial attendance” is frequently included in orders which have little to do with supervision in the sense that it is ordinarily understood in parenting orders.[1] It is often used in the context of ensuring that a parent who is entitled to contact — who may be a perfectly responsible and trustworthy caregiver for and supervisor of the child — is physically present during the majority (or vast majority) of the relevant contact period. It is used to preclude the possibility of the contact parent leaving the child with others (such as friends or family members, or even a daycare facility) for unacceptably long periods during contact. It is, or maybe regarded as, a corollary of the concept or principle that contact recognises and manifests a child’s right to know, be cared for and spend time with both his or her parents.[2]
[1] See below at paragraph 31.
[2] See section 60B of the Family Law Act 1975.
It is in that context that Bennett FM's, now Bennett J's, comments were made in the case of Banvard & Knowles. Nevertheless, and as indicated above, her Honour has said "substantial attendance" involves a party being present for at least one half of each contact period.
Dictionary
Although some dictionary definitions were referred to in the correspondence to which I have referred, I have consulted the Australian Concise Oxford dictionary[3] to see whether some guidance can be obtained from such definitions.
[3] Third Edition.
I start with the word "attendance". That is defined in the dictionary as “the act of attending or being present”. Clearly, attendance requires physical presence.
The word "substantial" is defined firstly as "of real importance or value," then, "of large size or amount," then, "of solid material or structure, or stout," then, "commercially successful or wealthy," then, "essential; true in large part," and finally, "having substance".
None of these definitions assists the court to any great extent, although clearly the first dictionary definition of the word "substantial" is of importance in a case such as the present one. The first definition refers to the use of the term "substantial" in the sense of:
real importance or value.
The Present Case Involves Serious Allegations
An appropriate starting point is to place the present case in its appropriate context. As in the case of Schnoor v Antrobus, it involves serious allegations regarding the wife's mental health, and also regarding her use or misuse of alcohol.
The husband's concerns are set out in the affidavit that he filed on
6 September 2005. He describes a number of suicide attempts in which the wife was allegedly involved. He asserts a history of the wife abusing alcohol, and various incidents that he alleges took place even whilst the child was present.
The wife — in her affidavit material — takes issue with some of the allegations raised by the husband. She asserts, for example, that she no longer has an alcohol problem, and says that she is able to drink in moderation at the present time.
Discussion
In my view, it is clear that substantial attendance is not the same thing as supervision. I agree with Morgan J in that regard. The concepts are different. In the case before her Honour, the order was to the effect that contact was to be “supervised” by a person who was to be in substantial attendance. The current order does not provide for supervision in that sense.
In Bieganski (1993) 16 FamLR 353 (at 369), the Full Court gave a clear indication of the scope of the supervision required where any risk of harm to children exists. Supervision in such circumstances requires “close monitoring” of the children by a person who can “always be present” and who will not “fail to respond protectively to complaints of abuse or distress by the children”. Supervisors “must be available to the children for safety and support and be prepared to intervene on the children’s behalf”.
In my opinion, “substantial attendance” might mean different things in different cases. The allegations regarding the wife in the present case — and bearing in mind that the orders the subject of argument before me today are not final orders but interim orders designed to cover the situation until a more extensive hearing can take place — raise serious questions about the best interests of this young girl, and how those interests can be promoted.
Substantial attendance in the present case is a very different arrangement from such attendance for a contact period during which an acknowledged competent caregiver is obliged be physically present for his or her child or children. That is the situation that Bennett J, then Bennett FM, was talking about in Banvard & Knowles. In such circumstances, the court is less concerned (perhaps) with protective aspects of the child's welfare.
In the present case, the order is clearly directed to ensuring the short‑term safety of [C], and to ensuring that problems do not arise in any form which might impact upon her welfare. Supervision of the wife with [C] is a component or element of the requirement for Mr P and/or Ms P to be in substantial attendance. Nevertheless, it recognises that constant, vigilant supervision in the usual (Bieganski) sense is not necessary. Indeed, I note that the orders that were made are not residence/contact orders at all. They are residence/residence orders.
In my view, for Mr P and Ms P to be in substantial attendance requires one or other of them to be present for all “contact periods” (as it were). I do not agree with the suggestion by the solicitors for the wife that
Mr P and/or Ms P need only be present for most contact periods. Clearly, the substantial attendance requirement adheres to all contact periods, and not simply to the majority of them.
In relation to the meaning of the word “substantial”, the question arises whether what is meant is “not less than 50 per cent of the time”, or a higher proportion. When I consider the first definition of “substantial” namely, “something that is of real importance or value”, and qualify it by reference to the later definitions such as, “of large size or amount”, it is clear — in my view — and with due respect to Bennett FM (now Bennett J) — that slightly in excess of 50 per cent is not what is intended. Certainly, such a percentage or proportion could not have been intended in a case such as the present one — bearing in mind the issues that have been raised regarding the welfare of the child in the care of the mother.
It is almost impossible to put some form of percentage allocation to the amount of time that Mr P and Ms P should be required to be present. Of course, "present" means physically present, because that is what the word "attendance" requires. But, in my view, “substantial” would require physical presence during a minimum (in the present case) of something in the order of 75 per cent or 80 per cent of the time.
It is to be noted from the decision of Morgan J that her Honour spoke of the — and I will use the word loosely — “supervisor” in that case going out for dinner during a contact period.
Thus, I conclude that “substantial attendance” requires Mr P and/or
Ms P to be physically present for approximately 75 per cent or 80 per cent (at least) of each contact period — or alternatively, each period — during which the child is to live with the wife.
Collecting from School and Driving Generally
Questions have arisen as to whether the wife should be permitted to collect the child from school and to spend periods driving with the child. In the light of the allegations that have been made, that would be inappropriate. In my view, “substantial attendance” requires substantial attendance (in the sense that I have defined it) during all components, for want of a better term, of the contact experience. In other words, if driving is to take place then, in my view, either Mr P and/or Ms P should be present for the vast bulk of that time.
Given the matters raised by the husband in his affidavit material, it is of concern to me that the wife might collect the child at the commencement of a contact period without either Mr P or Ms P being present at all. It is of concern to me because of my comment that “substantial attendance” might have different meanings in different contexts.
In this context, one of the problems with an arrangement that would permit the wife to collect the child in a motor vehicle (for example) without either Mr P or Ms P being present is that the wife might perhaps have become depressed, or she might perhaps have seen fit to take tablets or to drink alcohol prior to collecting her child. I make no finding that such behaviour has occurred in the past, or that it is likely to occur in the future. But the reality is that evidence now before the court leads me to be concerned that, if neither Mr P nor Ms P is present at the commencement of contact, then a problem might arise.
In my view, it is almost always necessary for a person who is to be in substantial attendance during contact to be present at the commencement and conclusion of each contact period. In short, I am of the view that the suggested interpretation supplied by the solicitors for the child representative is close to being the true position in law.[4]
[4] See paragraph 12 above.
As for going to the movies or the zoo — again, I am not persuaded that that is appropriate. It would not be a problem, of course, if Mr P or
Ms P attended the film with mother and child, and then went out for a short time during intermission or part of the film. Similarly, there is no reason why Mr P and/or Ms P and mother and child, need to be together at all times during, for example (and to use the same example as set out in the letter), a visit to the zoo. They need not be together at all times, but it will be necessary for them to touch base regularly during such a visit.
The reason for that is obvious. Mr P and Ms P (in this instance) need to satisfy themselves from time to time that the wife has not taken pills, or started to drink, or done anything else that might be untoward and lead to the child’s welfare being placed at risk.
To the extent that lengthy drives are involved, this is a problem that the wife will have to confront and deal with. It might not be necessary for Mr P or Ms P to be in the vehicle at all times while the wife is driving — but one or both of them must certainly be present for a substantial part of the journey, in the sense that I have used the word “substantial”.
I have already set out the reasons why such an approach is necessary. The paramount consideration must always be the best interests of the child [C]. At this stage of the proceedings, the court must adopt a cautious approach and, in my view, until all the allegations have been tested and until all relevant evidence has been placed before the court, no short cuts should be taken.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Walters FM.
Deputy Associate:
Date: 1 February 2006