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 of 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

1. 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.

2. 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.

3. Until further order, the father pay the cost of supervision at the contact centre.

4. 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.

5. 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.

6. 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.

7. 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 particulars are included in these orders.

IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

Mr Matthews

Applicant

And

Ms Bender

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 27 September 2013 I made detailed parenting orders which involved removing the child M, (“the child”) who is now nine years of age, from her mother’s care to live with her father and reserving the time she spent with the mother to allow the consolidation of her living arrangements with the father. I further ordered that Dr P, the family consultant, meet with the parties and the child and by no later than four months from the date of my orders prepare an updated report and make any further recommendations as to the mother’s time with the child. I otherwise listed the matter for mention before me at 9.00 am on 11 February 2014.

2. Dr P met with the father and the child and the mother on 13 January 2014 and her updated report was released on 22 January 2014. For the preparation of that report Dr P also relied upon information she obtained from her meeting with the child on 27 September 2013, the day on which my judgment was delivered, a telephone consultation with the father on 30 September 2013, and telephone consultations with Ms R and Ms T, who had both had sessions with the mother, Dr J, the child’s counsellor, Mr AB, the principal of the child’s school, and Ms Hams, the Independent Children’s Lawyer.

3. Counsel for the Independent Children’s Lawyer prepared a detailed minute of proposed interim orders for the introduction of the child’s time with the mother. She proposed that the mother commence spending time with the child on a weekly basis, if possible, at I Contact Centre. Her instructions were that the child could commence spending time with the mother in three weeks and it was the Independent Children’s Lawyer’s proposal that the mother communicate with the child by telephone for up to 15 minutes each Monday and Wednesday, commencing the following day.  The father was also amenable to the mother communicating with the child by Skype instead of by telephone.

4. The mother agreed in principle with the orders proposed by the Independent Children’s Lawyer, including that the child’s time with her should be supervised. However there were two aspects of the proposed orders which were in dispute. It was the mother’s case that if the child did not commence spending time with her for a further three weeks then it would have been almost five months since the child had seen the mother in circumstances where she was described by her counsellor Dr J to be missing her mother. On that basis, counsel for the mother submitted that the child’s time with the mother should commence forthwith and proposed that either the maternal grandmother, the paternal grandmother, or a professional supervisor, Ms Z, supervise her time with the child. Although of limited ambit the orders that I am asked to make are parenting orders and in those circumstances I must regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests I must consider the primary and additional considerations set out in s 60CC of the Family Law Act 1975 (Cth) (‘the Act’) insofar as they are relevant to the issues in dispute. The objects and principles underlying those objects to ensure that the child’s best interests are met are set out in s 60B of the Act.

5. Neither the mother nor the father had filed or sought to rely upon any further affidavits since the matter was last before me. I did, however, have the benefit of the updated report prepared by Dr P and a letter from Dr J to the Independent Children’s Lawyer dated 15 December 2013.

6. Although I am satisfied that the child is missing her mother and that it is in the child’s best interests to commence spending time with the mother as soon as it is practical to do so, I must also weigh this up against the risk to this child of what I have already found to be the mother’s lack of insight and inability to put the child’s needs before her own and her inability to spend time or communicate with the child without putting pressure upon her or undermining her relationship and now residence with the father.

7. The mother was reported by Dr P to have told her that she had consulted Ms R on three occasions, after which time Ms R had advised her that she did not need to attend any more, and that she had seen Ms T, two or three times. Ms R reported to Dr P that she had had three or four sessions with the mother but that it was her assessment that the mother required a more intensive psychiatric focus which she could not provide.  Ms R described the mother as presenting as remorseful and displaying a level of understanding about the need for change and the importance of the child’s relationship with her father, but that she easily slipped back to her familiar narrative about the father being unable to provide appropriate care for the child.

8. Contrary to what the mother was reported to have told Dr P, Ms T reported to Dr P that the mother had attended one or two sessions with her but that she was no longer a client. Ms T also reported that she had not received any information from the Independent Children’s Lawyer and had relied upon what she was told by the mother during her sessions with the mother.

9. Dr P, in her updated report dated 22 January 2014, said as follows:

   [The mother] currently presents as committed to desisting from these behaviours, though it is the writer’s opinion, which is shared by Ms [R], that [the mother’s] narrative about [the father] remains fixed and is unlikely to change without professional support, which she is not currently receiving.

10. In her letter dated 15 December 2013, Dr J reported that the mother:

    … will have a painful grieving process a head of her that could impact significantly on her ability to interact appropriately with her daughter. Currently a very strong denial process probably means that she’s (sic) not yet faced this grief, instead assuming it’s a bad dream that will end soon upon the return of her daughter. When circumstances are such that she is ready to face this grieving process it will be important that she has psychological and psychiatric support to manage her intense emotions, and to assist her keep interaction in access appropriate. It is highly likely that until the appeal is resolved that support to grieve and psychiatric treatment to manage intense emotions will be ineffective.

11. Although it appears the mother may have now attended a further appointment with Ms T, she has still only attended a total of five or six sessions of counselling during the five month period since I delivered my judgment in late September 2013 and her capacity to regulate her behaviour is yet to be tested.

12. I am satisfied that the time the child spends with the mother needs to be supervised to protect her from her mother’s negative views of the father and, as opined by Dr J, to allow her to “build up her own perspective, experience and trust in her dad”. I am satisfied, as recommended by Dr J, that the child’s time with the mother needs to commence in “a highly structured and supported way so that [the mother] develops an appropriate way of interacting with [the child] that focuses on their bond alone when they are together – to the exclusion of discussing any other people or relationships.”  

13. During the final hearing before me both the Dr J and Dr P gave evidence to the effect that they found it difficult to manage their interactions with the mother. Although the evidence suggests that the mother may be trying to modify her behaviour, during the mention before me she became angry and left the court prior to the conclusion of the matter when it became clear to her that I would not accede to her application that the child’s time with her commence the coming weekend and be supervised by a supervisor of her choice. I am not satisfied on the evidence before me that the mother is able to control her behaviour so as to rule out any risk to the child or that the supervisors suggested by her would be capable of managing any inappropriate behaviour.

14. The maternal grandmother gave evidence and was cross-examined at the final hearing of this matter. Based upon that evidence I made the following findings:

    She presented as quite passive and her evidence did not suggest, particularly given she said that she had read the various reports, that she had reflected upon the issues in this case or encouraged the mother to reflect upon the possible ramifications of the path she was taking.

    … I have no confidence that if [the child] were to continue to live with the mother that the maternal grandmother would have either the will or the capacity to either influence or contain the negative impacts of the mother’s behaviour upon [the child] or promote or facilitate [the child’s] relationship with the father.

15. There is no evidence before me to suggest that this has changed in any way and in those circumstances I am not satisfied that the maternal grandmother would be an appropriate supervisor in all of the circumstances of this case.

16. The paternal grandmother also gave evidence and was cross-examined at the final hearing of this matter. I found based upon that evidence that the paternal grandmother was child focussed, that she showed insight into the issues in the case, and that she had the child’s best interests at heart and would not act contrary to those interests. I am, however, not satisfied that she would necessarily be able to control the mother’s behaviour or remove the child in the event of any inappropriate behaviour, nor am I satisfied that it would be appropriate to place her in the position of having to do so, particularly given the importance of her relationship to the child.

17. The third of the mother’s proposed supervisors was Ms Z. There is no evidence before me as to either Ms Z’s qualifications or her suitability to act as a supervisor in this case upon which I could make an assessment of her suitability as a supervisor.

18. Although I am satisfied that the child should commence time with the mother as soon as is practicably possible, that ultimately must be weighed against the requirement that there be appropriate supervision of that time. I have made orders providing that the child communicate with the mother on Monday and Wednesday each week, commencing immediately. I also note that the father has facilitated the child speaking to the maternal grandparents by Skype and that he has offered the mother the same opportunity. The mother has not taken up the father’s offer of communicating with the child via Skype because she says she does not have the necessary facilities to do so at her home and because of the distance between her home and that of the maternal grandparents, however I would encourage the mother to further investigate the possibility of doing so. Although communication between the child and the mother by telephone or Skype may not be as satisfactory as face-to-face time, I am satisfied that it will allow them to take the first steps towards resuming their relationship prior to moving to the face-to-face time at I Contact Centre.  

19. There is also an issue as to who should meet the costs of the supervision at I Contact Centre. I was informed by counsel for the Independent Children’s Lawyer that there would be an initial intake fee of $150 and that each two-hour session would cost $220.

20. It was the father’s case that the mother should meet half of the costs of the supervision. Although, as I have already noted,  neither party had filed any affidavit material or a financial statement for the purposes of the mention before me, the father says that he has reduced his working hours to accommodate his responsibility for the child and that his income is now around $60,000 per annum. The father says that although previously he and the mother shared the costs of the child’s counselling, he is now meeting the entirety of that cost. The father continues to live with the child at his parents’ home.

21. The mother’s case was that she cannot afford the cost of supervision. She says that since the child was placed in the father’s care she has been receiving the Newstart allowance of approximately $250 per week. Although she had told Dr P that she was working on average two days per week, she says that is now limited to one day per week for which she earns approximately $120. The mother has mortgage payments of approximately $180 per week and, although this was disputed by the father, says that she pays approximately $50 per month by way of child support.

22. Although as submitted by  counsel for the Independent Children’s Lawyer there is some benefit in both the father and the mother making a commitment to the child’s ongoing relationship with the mother by way of their contribution  to the costs of supervision, doing the best I can on the evidence before me, I am also satisfied that, notwithstanding that the father has the ongoing care of the child with little financial assistance from the mother, he is in a superior financial position at this time. This is the case even where the mother no longer has to meet the cost of the child’s private school fees.  I am also satisfied that it would not be in the child’s best interests if she were to be precluded from having face-to-face contact with the mother because of the mother’s inability to meet her share of the costs of supervision.

23. This matter has been adjourned for further hearing before me in the judicial duty list on 8 May 2014. In all of the circumstances I am satisfied that the father should meet the costs of supervision at I Contact Centre, at least until that further hearing. Both the requirement for ongoing supervision and the cost of that supervision can be further considered on that date.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 20 February 2014.

Associate: 

Date:  20 February 2014