MATTHEWS & BENDER - [2014] FamCA 82

FAMILY COURT OF AUSTRALIA

MATTHEWS & BENDER

[2014] FamCA 82

FAMILY LAW – CHILDREN – interim orders – recommencement of the child’s time with the mother – whether supervised or face-to-face time – best interests – cost of supervision.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Matthews

RESPONDENT:

Ms Bender

INDEPENDENT CHILDREN’S LAWYER:

Glezer Lanteri & Associates Pty Ltd

FILE NUMBER:

MLC

3524

2008

DATE DELIVERED:

20 February 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

11 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Dr Alexander

SOLICITOR FOR THE RESPONDENT:

Peninsula Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Glezer Lanteri & Associates Pty Ltd

ORDERS

IT IS ORDERED THAT

The mother and father do all acts and things necessary to utilise the services of I Contact Centre (‘the contact centre’) in providing supervision of the time between the child M born … July 2005 and the mother.
Upon the contact centre becoming available to supervise time the mother spend time with the child on days and at times nominated by the contact centre and if it can be accommodated such times take place weekly.
Until further order, the father pay the cost of supervision at the contact centre.
The Independent Children’s Lawyer obtain a report as to the progress of the time between the mother and child from the contact centre and it is requested by the parties that Victoria Legal Aid fund the cost of that report.
The Independent Children’s Lawyer is at liberty to:
(a) liaise with the contact centre from time to time as to the progress of supervised time;
(b) provide to the contact centre copies of the reasons for judgment of Justice Macmillan dated 27 September 2013, 25 October 2013 and 20 February 2014, copies of the two family reports by Dr P, the report of Dr J dated 15 December 2013, and a copy of these orders;
(c) provide to the mother’s psychologist Ms T copies of the documents referred to in order 5(b) herein; and
(d) provide a copy of any report from the contact centre to the family consultant.
The mother and father engage in a joint parenting orders program with a view to developing a cooperative relationship between them as recommended by the family consultant and engage in this program at the contact centre or other facility operated by Family Life.
The father participate in and complete a parenting course approved by the Independent Children’s Lawyer and provide proof of completion to the mother and Independent Children’s Lawyer.

AND THE COURT NOTES THAT
Pursuant to s 65DA(2) and s 62B, the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached and these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MATTHEWS & BENDER

Details

AGLC: MATTHEWS & BENDER [2014] FamCA 82
Case: [2014] FamCA 82
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Mr Matthews (the applicant father) and Ms Bender (the respondent mother) concerning interim parenting orders for their child, M. The dispute centred on the recommencement of the child's time with the mother, specifically whether this time should be supervised and who should bear the costs of such supervision. The court was required to determine the best interests of the child in light of previous orders that had removed the child from the mother's care and the mother's current circumstances and capacity.

The legal issues before the court were whether the child's time with the mother should commence immediately, the nature of any supervision required, and the allocation of the costs associated with supervised contact. The court was mandated to consider the paramountcy of the child's best interests, as outlined in sections 60B and 60CC of the *Family Law Act 1975* (Cth), including the primary and additional considerations relevant to the dispute. This involved weighing the child's apparent desire to reconnect with her mother against the mother's demonstrated difficulties in managing her behaviour and her capacity to prioritise the child's needs.

Justice Macmillan reasoned that while it was in the child's best interests to commence spending time with the mother as soon as practically possible, this needed to be balanced against the need for appropriate supervision to protect the child from the mother's negative views of the father and to allow the child to build trust in her father. The court found that supervision was necessary due to the mother's lack of insight, her inability to consistently regulate her behaviour, and the concerns raised by professionals regarding her capacity to interact appropriately with the child. The court also considered the suitability of various proposed supervisors, ultimately finding none to be appropriate at that stage. Regarding costs, despite the general benefit of both parents contributing, the court determined that the father was in a superior financial position and that it would not be in the child's best interests for the mother's inability to meet supervision costs to preclude face-to-face contact.

Consequently, the court ordered that the mother and father facilitate the child's time with the mother through the I Contact Centre, with the father to bear the cost of supervision until further order. The court also made orders for the child to communicate with the mother by telephone or Skype, commencing immediately, and for the Independent Children's Lawyer to obtain a report on the progress of supervised time. The matter was adjourned for further hearing to consider ongoing supervision and costs.

Orders