Matthews and Bender (No 2)

[2014] FamCA 1100

FAMILY COURT OF AUSTRALIA

MATTHEWS & BENDER (NO 2) [2014] FamCA 1100

FAMILY LAW – CHILDREN – Mother’s contact arrangements – Withdrawal of contravention application.

APPLICANT: Mr Matthews

RESPONDENT: Ms Bender

INDEPENDENT CHILDREN’S LAWYER: Ms Hams

FILE NUMBER: MLC 3524 of 2008

DATE DELIVERED: 27 November 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 27 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O’Connell

SOLICITOR FOR THE APPLICANT: Fiona R McGregor

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE ICL: Ms Hams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

Orders

1. That the mother spend time with the child M born … 2005 (“the child”) on 20 December 2014 at 12.30pm, such time be supervised by the staff at the I Children’s Contact Centre for a period of up to two hours.

2. That the mother be at liberty to provide to the child a gift/s and a card provided such gift/s are in an unwrapped state and any card provided is in an unsealed envelope and given to the child through the staff at the I Children’s Contact Centre on 20 December 2014, and the staff at the centre be at liberty to inspect and/or veto such gift/s and card.

3. That the mother be at liberty to communicate with the child by telephone at 10.00am on 25 December 2014 for no longer than 15 minutes with the mother to initiate the phone call to the father’s landline and the father to ensure the child is available to take the call, and the father is at liberty to place the call on loudspeaker and terminate the call if the mother discusses these proceedings with the child.

4. That the mother be granted leave to withdraw her Contravention Application filed 7 October 2014.

5. That the hearing listed on 2 December 2014 at 10.00am be vacated.

6. That the mention hearing listed before Johns J on 17 December 2014 at 9.30am be vacated.

7. That the mother be granted leave to issue a subpoena to give evidence to Ms JS of Family Life. 

8. That my reasons for judgment be transcribed.

9. That pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Bender 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 MELBOURNE

FILE NUMBER: MLC 3524  of 2008

Ms Bender

Applicant

And

Mr Matthews

Respondent

REASONS FOR JUDGMENT

1. The matter listed before me today comes before me by way of an application in a case filed on 18 November 2014 filed on behalf of the mother in these proceedings.  That application is an application for the mother to spend time with the child the subject of the proceedings, namely M (the child), who is aged nine years.  The mother seeks an order that she be permitted to spend time with the child on Christmas Day between 10 am and 4 pm, such time to be had at the home of the maternal grandparents.  The application was supported by an affidavit of the mother filed 18 November 2014. 

2. This matter comes before me, having had a long history before this Court.  The proceedings were originally listed for final hearing in relation to the parties’ competing residence applications before MacMillan J.  Her Honour heard those applications in 2013.  On 27 September 2013, her Honour made orders that the child live with the father and that he have sole parental responsibility.  Pursuant to those orders, the mother spent no time with the child from the date of those orders until about February of this year.  In February 2014 the mother commenced spending supervised time with the child at the I Contact Centre. 

3. The remaining issue before the Court is the question of what if any time the child should spend with the mother.  Those issues are listed for final hearing before me to commence on 20 January 2015. 

4. In July 2014 the matter came before Senior Registrar FitzGibbon.  At that time there were concerns about the manner in which the mother was exercising her time with the child in the supervised contact centre.  There were allegations raised that she was behaving inappropriately, that she was conveying messages to the child and otherwise placing the child under undue and inappropriate pressure. 

5. As a result of those concerns, the senior registrar made orders discharging the previous spend time orders and further ordering that the mother continue to spend time with the child at that contact centre every third week.  In addition, the senior registrar made orders providing for the mother to communicate with the child on two occasions each week, that time to be initiated by a telephone call to the father’s landline. 

6. The mother today urges that I make provision for her to spend time with the child on Christmas Day.  She is concerned that the child missed the opportunity of spending any time with her at Christmas in 2013, and she is concerned as to the impact of another Christmas passing where she does not have the opportunity of spending time with the child.  The mother denies the allegations that either she or her parents have behaved inappropriately.  She specifically denies the allegation that her mother has in any way breached an undertaking previously given to the Court with respect to her obligations to supervise. 

7. Further, the mother says that she has complied with all orders of the Court, that she has undertaken therapeutic counselling as required, and therefore she does not pose a risk to the child. 

8. The father opposes the orders sought by the mother.  He provides a minute of orders and seeks that I make orders in those terms.  That minute provides that the mother have the opportunity of supervised time with the child on 20 December 2014 at the contact centre.  That time would be in addition to her regular time, which occurs every third week. 

9. In addition, the father seeks an order that the mother have telephone communication with the child on Christmas Day at 10 am for a period of up to 15 minutes.  The form of that order is identical to that which was provided in the orders of Senior Registrar FitzGibbon in July 2014. 

10. It is said on behalf of the father that there is no evidence which would support any change from the current interim arrangements with respect to the time the mother is to spend with the child.  In support of his position, he relies upon the family report of Dr P, which is dated 16 June 2014. 

11. Dr P interviewed the parties and the child on 10 June 2014.  Dr P notes in her report comments made by the child which would give the Court significant concern as to the capacity of the maternal grandparents to appropriately and safely supervise any time between the mother and the child.  For example, at paragraph 14 of that report, Dr P records an allegation made by the father of a report that the child had divulged that the mother had telephoned her whilst she was in the care of her maternal grandparents.  If such conduct has occurred, it is contrary to orders of this Court as to the manner in which the mother is to communicate with the child. 

12. At paragraphs 30 to 31 of the family report, Dr P notes reports by the child that the mother has been taking notes, that the mother has been attempting to influence the child in terms of what she says to her counsellors.  Further, the child reports to Dr P that the mother has telephoned her when she was at the maternal grandparents’.  Dr P observes at paragraph 47 of her report as follows:

    Despite undertakings and promises, the maternal grandparents failed to protect the child from her mother’s behaviour.  It is unknown whether this failure is a deliberate collusion with the mother, or simply a reflection of their powerlessness in their own relationships with the mother and difficulty withstanding the mother’s will and influence.  Regardless, supervision by the maternal grandparents appears futile in protecting the child from psychological risk by the mother.

13. The ICL supports the father’s proposals. I am not in a position to make any findings today as to the accuracy, the truth or otherwise of the allegations that are raised by the father and the matters reported by Dr P. This is an interim hearing on the papers. Ultimately I must consider the best interests of the child. A determination of the child’s best interests requires a consideration of the primary and the additional considerations set out in section 60CC subsections (2) and (3) of the Family Law Act.  An analysis of those considerations of what is in a child’s best interests must be consistent with the objectives and principles underlying those objectives as set out in section 60B of the Act. 

14. Before me today I only have the affidavit material filed by the parties, which is untested, as well as the evidence of Dr P.  That of itself is not an unusual circumstance in an interim hearing.  The Full Court noted in Goode & Goode that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is significantly curtailed. Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. Doing the best I can, I must have regard to the primary considerations as set out in section 60CC. In applying those primary considerations, I am to give greater weight to the considerations set out in subparagraph (2)(b), that is:

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

15. In this matter there are serious issues raised as to the potential psychological harm visited upon this child by virtue of the mother’s behaviour towards her.  It is said that the mother is unable to contain and curtail that behaviour even when supervised by the maternal grandparents.  I reiterate that the evidence is untested and ultimately a different position may be found upon a hearing and testing of the evidence.  However, in this interim determination, the need to protect the child from the potential of such harm is at the forefront of my mind. 

16. That being the case, I am satisfied that the minute of proposed orders as sought by the father and supported by the ICL are appropriate orders in the circumstances of the case.  They will afford the child the opportunity of spending some special time with her mother in the days shortly prior to Christmas.  They will afford the mother and child the opportunity of exchanging gifts.  There is provision in those orders for the mother to provide a gift in what is a safe setting.  There are particular and specified limitations on how the gift is to be provided. 

17. I am assured by the independent children's lawyer that the arrangements as contained in the minute are appropriate.  She confirmed in her submissions the support for those proposals, and she confirmed further that she will notify the relevant supervisors of the requirements under those orders. 

18. I am also satisfied that the arrangements for telephone communication between the mother and the child on Christmas Day are appropriate in the circumstances of the case.  As to the future conduct of the matter, it was to be listed for mention before me on 17 December at 9.30 am. 

19. I have been provided with an update and overview of the progress of the matter by the independent children's lawyer.  This matter is on track for the listing of the final hearing.  Most of the evidence has been filed.  Appropriate arrangements have been made by the parties, including the independent children's lawyer, for the filing of the additional expert material from the relevant supervisors and counsellors.  On that basis, I propose to vacate the mention hearing listed on 17 December.  In the event that an issue arises, upon appropriate notice to the other parties the matter may be relisted for mention on short notice.

20. As I have indicated, I make orders in the terms of the minute of order prepared by the father.  Those minutes will be engrossed by the Court, and there will be a further order regarding vacating that mention hearing date. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 27 November 2014.

Associate: 

Date:  27 November 2014