MAXFIELD & ELIOT

[2020] FamCA 1035

FAMILY COURT OF AUSTRALIA

MAXFIELD & ELIOT [2020] FamCA 1035

FAMILY LAW – CHILDREN – where the mother seeks that the child’s time with the father return to supervised time at a contact centre – where the Court considers that current Orders for time should recommence – where the father contends he can no longer afford the changeover fee for the whole of the Sunday – where the Court is not prepared to vary the current Order in place for payment of the contact centre fees.

Maxfield & Eliot [2018] FamCA 866

APPLICANT: Ms Maxfield

RESPONDENT: Mr Eliot

FILE NUMBER: BRC 2474 of 2013

DATE DELIVERED: 12 November 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 12 November 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms K Streeter

Legal Aid Queensland

THE RESPONDENT: Self-represented

INDEPENDENT CHILDREN’S LAWYER:

Mr I Field

Aylward Game Solicitors

Orders

1. That Order 1 of the Orders made 26 October 2020 to suspend time be discharged.

2. That the child’s, B born … 2010 (“the child”) time with the father resume in accordance with the Orders made 22 May 2019 and that those Orders remain in full force and effect including all supervisory conditions (arising from Orders made 4 October 2018) and Orders for payment of contact centre fees as set out at Order 4.

3. That time between the child and the father is to resume at the earliest date the contact centre can accommodate the family.

4. That these proceedings be adjourned for Directions before Registrar Coutts at 10.00am on 11 March 2021 in the Family Court of Australia at Brisbane.

5. That the Independent Children’s Lawyer be at liberty to apply.

IT IS NOTED:

(A)That these proceedings are to remain in the docket of the Honourable Justice Baumann.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maxfield & Eliot has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2474 of 2013

Ms Maxfield

Applicant

And

Mr Eliot

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. This matter has had a very long history and, sadly, will be proceeding in its interim phase for many more months because, apart from all the ongoing, new issues that arise between the father of B, Mr Eliot, the mother of B, Ms Maxfield and other children of a relationship between Mr Eliot and a Ms E, serious criminal charges that hang over the father’s head (which he is defending) relating to serious physical abuse of a child are yet to be determined by the District Court of Queensland.

2. Mr Field, who is the Independent Children’s Lawyer in this very difficult and complex matter; a matter where the father now has no representation, sadly; indicates on the best of his enquiries, the father’s criminal trial might be concluded in the first half of next year.

3. For Reasons which the Court set out in a Judgment delivered on 4 October 2018 (see Maxfield & Eliot [2018] FamCA 866), the Court, at that stage, imposed supervision conditions on the time the child, B, who is 10 years of age today, was spending time with the father.

4. The history reveals that the Orders, at that time (noting before then time was not occurring at all), progressed through a number of stages until it reached a level of each alternate Saturday from 10.00am until 5.00pm.  The supervisory conditions were very specifically set out at Order 4 of the Orders made on 4 October 2018 and still apply.

5. Subsequent to those Orders, the Court by its Orders made on 22 May 2019 increased the amount of time B would spend with the father to both Saturday and Sunday each alternate weekend from 10.00am to 5.00pm.  The supervisory conditions continued. 

6. Furthermore, as a result of the increase in time by Order 3 made on that occasion, the changeovers which take place at the D Contact Centre were to be paid for, in terms of their fees, equally for the Saturday changeovers and wholly by the father in respect of the Sunday changeovers. 

7. In many ways, this matter was in a holding pattern, waiting for the criminal charges to be finalised.  As I have already indicated, they are serious charges which the father is defending and he should not be required, where his liberty is at stake, to defend himself in a civil court. However, those serious charges were the major contributor to the Court ordering supervised time and, as I have indicated, now in one form or another and, increasingly, B’s time with the father has continued, supervised now, for over two years. 

8. One thing that has not changed in this matter is that the toxic relationship between these parents continues and is a very significant difficulty for B to navigate.  There is no real doubt about that and it is identified in a number of family reports; the most recent being 2 August 2017.  There seems to be, if the parties are getting effective counselling, little reduction in the heat of the conflict and what seems to be, from time-to-time, the intrusion of Ms E into the family relationship between these parties so far as B is concerned.  It is hard to see that Ms E’s involvement has any real positive outcomes.

9. Nonetheless, and understandably, the mother became aware from disclosures made by the child, she says, that there was an event that occurred on 21 December 2019 when the father, during a period he was spending time with the child, was in a car with B and where his mother was not present, as she was required to be under the terms of the supervisory Orders which still applied.

10. Although the mother had some hearsay evidence from an officer at the Suburb CC Police Station about the lack of the paternal grandmother being in the car on that occasion and although the mother, in her Affidavit, which I have referred to in my discussions with Ms Streeter says that the mother had other disclosures from the child about his grandmother not being present or in another room, therefore, not within the line of sight of the father and the child often, it was the event of 21 December 2019 that the mother used as a focus for this application to the Court.

11. I am not critical of the mother in doing so.  In fact, understanding what might be said to be the basis of the grandmother’s assertion to the mother, she says to her, a conversation which the grandmother, on oath, disputes occurred.  The paternal grandmother says she cannot recall it and, thereafter, when raised with the Independent Children’s Lawyer, the grandmother indicated that there was no period where the child was not in her presence when spending time with the father.

12. The mother continued to allow the child in accordance with the Orders to spend time with the father, supervised, under the Orders, for over six months before, as a result of the very significant work undertaken by her solicitor, Ms Streeter, and with the a grant of Legal Aid, she was able to get a subpoena directed to the Queensland Police Service which did, with the use of bodycam footage, identify that on the day in question when the father was apprehended for a random breath test (but not charged with any excess alcohol content) the grandmother was not present.

13. Immediately thereafter, the mother ceased time and although she offered the father time totally at a contact centre, he refused.  The result has been that the child, B, has now had no time with the father and, I would note, with the paternal grandmother, for over four months.  Telephone time has continued.

14. It was not until the mother filed on 6 October 2020 an Application in a Case, which is before me, asking that the Orders be varied so that, effectively, B’s time with the father become supervised in its entirety, again, at the D Contact Centre, that this matter came to the attention of the Court in a formal way.

15. As I have indicated, the father is unrepresented and is dealing with a number of actions in a number of courts as an unrepresented litigant.

16. Mr Field, the Independent Children’s Lawyer, when the matter first came before the Court on 26 October 2020, tendered a number of documents which arose from exchanges at the children’s contact centre; the email from Ms U earlier referred to where she indicated that there was no period where she had not been present and a number of documents from the Department of Child Safety, Youth and Women (“the Department”), specifically those to which Ms Streeter has very comprehensively addressed me on in respect of observed supervised time between the father and J and X.  Ms Streeter referred me to allegations that the grandmother has been spoken to harshly by her son and her passive reaction.

17. Also, and very significantly, an incident on or about 7 July 2020 occurred where it is asserted that the father, effectively, assaulted a person named “Mr DD” who was involved with supervision of the father’s time in some way, or present, when he was spending time with the children such that the Department decided to suspend the father’s physical visits with J and X.

18. Again, this information which, apparently, was first shared with the mother of J and X (Ms E) in an ongoing discussion which concluded, the mother says in her most recent Affidavit, with comments made on 12 September 2020, all added to the mother’s concerns about the father being a continuing risk to B of such an unacceptable nature that the supervisory conditions imposed by the Court would not protect him.

19. I have heard the submissions made by all parties today.  The father’s are more contained within his Affidavit filed on 3 November 2020.  I have also read the Affidavit of his mother Ms U who sets out her evidence about what occurred on 21 December.  She concedes, but does not indicate why she did not make this concession to Mr Field when invited by him to do so, that there was a period on 21 December when the child was in the unsupervised care of the father.

20. The father’s Affidavit and, to this extent, his mother’s evidence, untested but on oath, is the same, and is that it arose over a short period of time on a short car ride when the child wished to be in the car that was apparently being sold, travelling to a service station a few kilometres away.

21. I am satisfied, as the grandmother clearly swears to, that this was a breach of the Order.  The mother fears, of course, and understandably, that the only way that this breach could be established is because, luckily perhaps, police apprehended the father through a random breath analysis engagement and, as a result, she had some evidence of it.  She says, in her Affidavit, and it is the tenor of her competent lawyer’s submissions that this is but the tip of the iceberg. 

22. Of course, those fears of other failures to supervise are not supported by any other evidence other than disclosures, somewhat vague, said to have been made by the child to the mother and the context of which, as I have indicated to Ms Streeter, is not fully known. 

23. The lack of supervision by the grandmother is denied by the grandmother, on oath, on any other occasions, although she now concedes the 21 December event and the father says likewise.

24. Of course, I am concerned about these events.  The father’s history shows, at times, an inability to control his emotions.  He has, on a number of occasions, both in Court and, even today, on the telephone, been abrupt with the Court and shown a lack of emotional regulation.  He says, and I accept, that he feels frustrated by the process; believes he has done nothing wrong and is being victimised by the Court, the mother, Ms E, the Department and other persons.

25. However, in my view, today’s decision has to balance up whether the evidence I have, which I have spent some time exploring with Ms Streeter who has, very carefully, taken me through a number of examples in the subpoena material which I have responded to, as the transcript reveals, raises the risk profile such that the child is at an unacceptable risk in the care of the father which cannot be ameliorated by the presence of his mother, Ms U.

26. If I find that to be the case, then the result for B, who is currently and has at least since 17 July been spending substantial time, but not overnight with the father, each alternate weekend for two days (Saturday and Sunday), would be significantly reduced, possibly with a further period of no time between the father and the child, for months until a more cost effective contact centre becomes available.  If the parties could afford it – and on the evidence I have before me I have some doubts about that – perhaps, two hours a fortnight at C Contact Centre, where the family had previously been.

27. That would be a very significant change, both, reduction in time for B and would be an environment nothing like that which he has been enjoying over the last two years in the care of the father with the grandmother, I am satisfied, present on most occasions except for that short period on 21 December.  Such a change could have a significant impact upon B’s relationship with the father.

28. This case has to be determined on what is in the best interests of the child.  I do not anticipate that any of my Reasons are going to satisfy the mother’s continuing concern about the father which arises, to a large degree, from their relationship and the events since then and the ongoing involvement of Ms E.

29. The father continues to assert he has done nothing wrong, and can see no reason why the child should not be having unsupervised time with him.  The evidence from the Department does reveal that, at times, the father’s emotional dysregulation erupts.  That is the clearest way of describing the limited information in the Department records.  However, I am not satisfied, on an interim basis, that it would be in the best interests of the child to return to limited supervised time.  Accordingly, the current Orders will recommence forthwith.

30. The father says in his Affidavit filed on 3 November that he is now unemployed, that he has a serious wrist injury that will require surgery and rehabilitation and that he is no longer able to afford to pay the whole of the supervision centre’s costs for the Sunday.  Although it may seem to be a small amount of money, on the evidence before me, bearing in mind that the mother bears, even with a very seemingly modest Child Support payment, the total costs of the child B’s needs, with Government support, I am not prepared to change the Order in which the contribution to the contact centre costs are met.

31. If the father is unable to find the monies to pay all of the Sunday contact centre costs for changeovers then, sadly, it will not be possible for the Sunday visits to take place.  I would expect that between he, and his mother, who I am satisfied, on the evidence (particularly with the way she has engaged with J and X, as reflected in the Department records) has a positive relationship with B and, fairly, as Ms Streeter indicated, an acknowledgement by the mother of the importance of that relationship, and one that she facilitates, that the household of the father can find the extra costs of the contact centre for the Sunday visits to continue to occur.

32. For the Reasons given, the Order of the Court will be:

    a)that Order 1 of the Orders made 26 October 2020 to suspend time be discharged; and

    b)that the father’s time with the child B resume in accordance with the Orders made 22 May 2019 and that those Orders remain in full force and effect including all supervisory conditions (arising from Orders made 4 October 2018) and Orders for payment of contact centre fees as set out at Order 4.

I certify that the preceding thirty two (32) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Baumann delivered on 12 November 2020.

Associate: 

Date:  7 December 2020