MILBERG & MILBERG
[2020] FCCA 3303
•19 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILBERG & MILBERG | [2020] FCCA 3303 |
| Catchwords: FAMILY LAW – Application for interim parenting arrangements for children aged 8 and 5 – children in the care of their mother, who alleges the father is unable to control his anger in the presence of the children – mother proposes telephone communication time only – father and independent children’s lawyer promote time at a children’s contact centre – nature of contact centre supervision – interim hearing – assessment of risk – meaningful relationship – best interests of the child. |
| Legislation: Family Law Act 1975 (Cth), s. 60CC |
| Cases cited: Dieter & Dieter [2007] FamCA 608 Moose & Moose [2008] FamCAFC 108 |
| Applicant: | MR MILBERG |
| Respondent: | MS MILBERG |
| File Number: | ADC 5661 of 2019 |
| Judgment of: | Judge Brown |
| Hearing date: | 19 August 2020 |
| Date of Last Submission: | 19 August 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 19 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kyrimis |
| Solicitors for the Applicant: | Kyrimis Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Women’s Legal Service |
| Counsel for the Independent Children’s Lawyer: | Ms Atchison |
| The Independent Children’s Lawyer: | Nicola Atchison |
UPON NOTING
That the mother is pursuing an Application for an Intervention Order in the City B Magistrate’s Court in which both X and Y are named as protected person and the father is named at the defendant.
The Independent Children’s Lawyer has brought to the attention of the mother via both her legal representative in these proceedings as well as her legal representative in the Intervention Order proceedings that she considers that the Application for an Intervention Order as it concerns the children is ill-founded and that the issue of the father’s relationship with the children should be managed through these proceedings.
That no records have been produced to the Court by SAPOL or DCP in respect of the s69ZW orders made on 20 February 2020.
THE COURT ORDERS DURING THE PERIOD OF THE ADJOURNMENT:
That paragraphs 1, 4, 10, 12, 13, 14, and 16 of the orders made on 24 March 2020 do continue.
That the father do spend time with X and Y as follows:-
(a)Each Saturday from 12 noon until 4.00pm (or such other times as may be nominated by the City B Children’s Contact Centre);
(b)On Sunday 6 September (being Father’s Day) from 12 noon until 4.00pm (or such other times as may be nominated by the City B Children’s Contact Centre);
(c)At such other times as may be agreed in writing between the parents.
That all handovers for time spending in accordance with paragraph 2 hereof shall take place and be supervised by the City B Children’s Contact Centre unless otherwise agreed in writing between the parents.
That in the event that any of the time spending in accordance with the terms of paragraph 2 hereof does not proceed for any reason other than cancellation or non-attendance by the father, then makeup time shall occur on the Sunday of the week following the missed time spending (meaning that the father will then have time spending on both the Saturday and Sunday of that week) from 12 noon until 4.00pm (or such other times as may be agreed in writing between the parents or may be nominated by the City B Children’s Contact Centre).
That in respect of paragraph 4 hereof, if the City B Children’s Contact is unable to facilitate any handover for the Sunday makeup time, then handovers shall take place between the father and the maternal grandfather (or such other person who the mother shall notify the father in writing at least 24 hours prior to handover will be attending to facilitate handover) in the car park of McDonald’s C Highway, City B (or such other venue as may be agreed in writing between the parents).
That the mother (or any other person who attends on her behalf to affect handover) shall actively and positively encourage both X and Y at the handover to attend any time spending with the father.
That the father be at liberty to telephone X and Y each Wednesday at 4.30pm (or such other day and/or time as may be agreed in writing between the parents) and for that purpose the father shall telephone on the mother’s mobile phone number nominated in accordance with the terms of this order and the mother shall ensure that the phone is fully charged and switched, that X and Y are available to answer such call and that they have a private and quiet space in which to speak with the father PROVIDED HOWEVER that such phone call shall not exceed ten minutes in duration (unless otherwise agreed in writing between the parents).
That the father be at liberty to send cards, letters and gifts to X and/or Y.
That the mother shall facilitate X and/or Y telephoning the father at their request using the mobile phone number nominated in accordance with the terms of this order PROVIDED that such request is made before 7.00pm on any day.
That the mother be restrained and an injunction is hereby granted restraining her from scheduling any appointment for X and/or Y with any counsellor, therapist or any other mental health professional during any time spending pursuant to the terms of this order without the prior written consent of the father or an order of this Honourable Court.
That both parents are hereby authorised to obtain from any school that X and/or Y may attend from time to time (which includes attending appointments with any school leader, school counsellor and/or any of X and/or Y’s teachers) any information that is usually provided to caregivers including but not limited to school newsletters, school reports and school photographs and to attend any functions/events to which caregivers are normally invited to attend including but not limited to school assemblies, school concerts, Sports Days and Parent/Teacher interviews PROVIDED HOWEVER that the father shall give the mother at least 48 hours’ notice in writing of his intention to attend any such school function/event via the mobile phone number nominated in accordance with the terms of this order.
That both parents are hereby authorized to attend any sporting or extra curricula activity that X and/or Y may participate in from time to time.
That in respect of paragraphs 11 and 12 hereof, both parents shall ensure that if they attend the same school function/event, sporting and/or extra-curricular activity that they will not engage in conversation with X and/or Y or attempt to initiate conversation with X and/or Y whilst X and/or Y are in the company of the other parent PROVIDED HOWEVER that to acknowledge X and/or Y with a wave or similar hand gesture is not an attempt to initiate conversation.
That in the event that the father comes into contact with X and/or Y at times other than those designated for time spending in accordance with the terms of this order, then the father is permitted to acknowledge X and/or Y by way of a wave or similar hand gesture.
That in the event that X and/or Y whilst not in the company of the mother initiate a conversation with the father at any school function/event, sporting activity, extra curricula activity or during any unplanned contact, then the father is at liberty to engage in conversation with X and/or Y.
That the mother be restrained and an injunction is hereby granted restraining her from enrolling X and/or Y in any sporting and/or extra curricula activity that takes place during the father’s time spending in accordance with the terms of this order without the prior written consent of the father or an order of this Honourable Court.
That parents shall keep each other informed of their current mobile phone number and residential address and shall advise in writing any changes to the same within 24 hours.
That the parents shall communicate on all issues regarding the care, welfare, development, education, health, extra curricula activities and time spending arrangements for X and Y by text message to the mobile phone number nominated in accordance with the terms of this order.
That both parents are hereby authorized to liaise with, obtain information from, provide information to and attend appointments with any medical specialist, GP, dental practitioner, allied health professional, psychologist, counsellor and/or therapist with whom X and/or Y may consult from time to time PROVIDED HOWEVER that if the father telephones the children’s GP Clinic and this phone call is answered by the mother (who is employed at that Clinic) then the mother shall take all necessary steps to transfer the phone call to another staff member to deal with.
That both parents be at liberty to file copies of any documents received by them, including copies of affidavits filed in these proceedings and any Family Assessment Report prepared in these proceedings, in the proceedings issued by the mother for an Intervention Order which are currently being heard in the City B Magistrate’s Court.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released on or before 26 October 2020.
The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)any other matters that the family assessor considers important to the welfare or best interests of the said child.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co-ordinator, Federal Circuit Court of Australia.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference
NOTING:
A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court
C.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
Further consideration of the matter is adjourned to 26 November 2020 at 9:30am in City B for directions including whether the matter needs to be set for trial or the parents and the Independent Children’s Lawyer attend an FDR Conference with the Legal Services Commission.
IT IS NOTED that publication of this judgment under the pseudonym Milberg & Milberg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 5661 of 2019
| MR MILBERG |
Applicant
And
| MS MILBERG |
Respondent
REASONS FOR JUDGMENT
Preamble
These reasons for judgment were delivered orally. Given the length of the reasons, it is appropriate that the reasons be transcribed. This is the relevant transcript. Grammatical errors have been corrected and efforts made to make the oral reasons amenable to being read.
Introduction
This afternoon, I have to deal with proceedings in which Mr Milberg is the applicant and Ms Milberg is the respondent. They are the parents of two children, X who was born in 2012, and Y who was born in 2015.
The proceedings began some time ago with the father’s application, which was filed on 23 December 2019. At that stage, on an interim basis, Mr Milberg sought that he spend periods of supervised time at the City B Children’s Contact Centre with the children concerned.
On a final basis, he seeks orders which would see him having regular weekend time with the children; as well as some time on an intervening Thursday; for half of all school holidays; and on designated special occasions. He has also sought the settlement of issues to deal with the parties’ matrimonial property.
For all sorts of reasons, but mainly because of the conflict between the parties, the proceedings have had a long gestation period through the Court and, at this juncture, there is absolutely no trust between the parties concerned.
Because of the difficult dynamic of the family, on 20 February 2020, I made an order that the two young children should be independently represented. That is not a routine order, but it is one which is frequently made in cases involving high conflict. Regrettably, there is a very high level of conflict between the parents concerned in the case.
The children’s representative is Ms Atchison, who is an experienced family lawyer. Ms Atchison has statutory responsibilities under the Family Law Act.
Pursuant to section 68LA of the Act, it is her responsibility to assess the evidence available and then advocate the position which she thinks will best serve the interests of the children or child whom she represents. It is my experience that Ms Atchison is a very diligent person who carries out her statutory obligations to the letter.
By way of background, the parties married in 2010, when they began to live together. They separated initially in mid‑2015, but later resumed their relationship. However, they were unable to reconcile their relationship.
It is the father’s position that after the parties separated, he experienced extreme difficulty in maintaining his relationship with the children, and there was a period of time when he had some supervised contact with the children. In his affidavit material, he also agrees that his behaviour has not always been without reproach.
In any event, it is his case that he began to see the children regularly, but the respondent ceased his time with the children following something that happened on 12 January 2019 at the City B Sports Centre. He deposes as follows in his affidavit of 23 December:
“It was time to leave as we needed to go home and have tea before the children were due to go back to the wife and I didn’t want to be late for fear of reprisals. After telling X several times to get out of the pool, with her persistently refusing, I physically pulled her out of the water and sat her on the step where I was. I had one hand on her arm and the other hand supporting her side to do this. We had been in the pool for around two hours at that time and I probably grabbed her a little tighter than usual because she was wet and I didn’t want to drop her. I understand it left a small bruise on her arm (about the size of a fingernail). X didn’t show any signs of being upset.” [1]
[1] See father’s affidavit filed 23 December 2019 at [24]
The mark was noticed by a person associated with the mother’s family. The incident was reported to the Child Protection Services and the matter was investigated.
Mr Milberg was not formally charged with any criminal offence, but he was, however, interviewed by Child Protection Services. As a consequence of that, it was substantiated that he had used excessive discipline, not only on that occasion, but also, it had been found, on earlier occasions.
Thereafter, Mr Milberg took part in a course called the “Abuse Prevention Program”, which is offered in conjunction with the Magistrates Court. He has also completed a “Parenting After Separation” program.
In respect of his attendance at the Abuse Prevention Program, it was said that Mr Milberg had begun to acknowledge past inappropriate behaviours and was developing more awareness of what constitutes abuse and strategies to manage future situations. His counsel characterises this as a positive report and I agree.
Mr Milberg also acknowledges a history of depression and has deposed that he has been prescribed antidepressant medication in the past. It also seems to be clearly the case that the parties’ relationship was, at times, a very unhappy one, and the father reacted to this situation.
The father has also expressed concern that there is conflict between him and the mother’s father, the children’s maternal grandfather, because of issues to do with his (the paternal grandfather’s) religious beliefs and the position which he holds in the church; I think he may be a minister or a pastor.
In any event, given that difficult background, it was clearly, in my view, appropriate that the two children be independently represented. In addition, given the dynamic of the family, I was persuaded that it was appropriate to proceed cautiously. I have, at an earlier occasion, ordered the Department to produce its records. The Department has not produced its records and no one has told me why that has been so.
As I say, I have made cautious orders which allow the children to spend supervised time with their father at the children’s contact centre in City B, where they have interacted with their father in the past, and I have received a report that indicates that, from May onwards, there has been at least six visits. Some have been cancelled because of various reasons. The last visit occurred on 19 August.
I have read the report very carefully. It is 24 pages long and is replete with detail. It was not easy for the children to separate from their mother. In addition, both children, in the context of separating from their mother going into the care of a worker, have said things that were negative about their father and indicated a negative view about him.
However, as I observed earlier today, what is also striking about the report is that when the children were directly exposed to their father, without their mother being in the vicinity, and after the children had completed the process of exchange, the children transformed.
The contact centre workers concerned described the children’s body language and behaviour around their father as being comfortable and relaxed, and the conversation with him being free ranging about all sorts of things that the children would be interested in such as sports, hobbies and X’s haircut.
From my point of view, that contact centre report is the most compelling and objective piece of evidence regarding the nature of the children’s relationship with their father.
In those circumstances, Ms Atchison has proposed a raft of orders, which see the parties moving away from the children’s contact centre supervising time. What she proposes is four hours on Saturday afternoon from 12 noon until 4.00pm, and some time on Father’s Day.
The mother’s position is that I can make orders for telephone time. In addition, she is open to the court making an order that the children can acknowledge their father, if they see him in the street and can talk to him. This order arises in the context of the parties living in a small country town where it is not unusual, of course, for people to run into one another.
It also coincides with the mother, as she is entitled to do, commencing proceedings in the Magistrates Court to have the children placed as protected persons on an intervention order. How successful those proceedings will be, I do not know. It is not for me to say.
I can, however, point out that, pursuant to the provisions of the Family Law Act, I have the authority to modify any intervention order, if I am persuaded that it is in the best interests of a child to do so. So I am not sure what purpose is sought by those proceedings. That must be a matter for the mother and her advisers.
The children’s contact centre report was filed on 13 August, so a few days ago. I am told today that the mother does not agree with how she has been portrayed in it, however, she has not filed an affidavit to that effect.
Additionally, earlier today, when counsel for the mother indicated that he was briefed, in effect, to oppose the orders proposed by the independent children’s lawyer and that he had had only a fairly brief telephone conversation with the mother, I thought that was not good enough.
I am under a statutory duty to ensure the proceedings do not become unduly adversarial. As a consequence, in my view, there must be at least an attempt, I think, to focus on what is going to be the probable outcome of the proceedings, including on how the proceedings can be best managed, and how the parties can be encouraged to start working cooperatively together in respect of arrangements for X and Y.
I appreciate that the parties may think that it is impossible for them to work cooperatively together, and at this juncture they may very well be right. However, given the positive nature of the contact centre report and what is a very modest amount of time, I thought perhaps something could be finessed out.
Well, that has not proven to be the case and the issue is, do I let the process drive this case or do I focus on what is best for the two children. I do not think I should let process drive the case. It is in that context that I have to think about the children’s contact centre report, and children’s contact centres generally.
The Commonwealth Government funds children’s contact centres in Australia. There is a great need for them for many separated families. If one looks at the Attorney‑General’s website, the purposes and functions of children’s contact centres are set out. They are to act as a triage in the difficult situations which often arise after parental separation. As such, they provide a temporary solution.
In the longer term, parents are to be encouraged to make their own arrangements outside of the children’s contact centre. Contact at a children’s contact centre cannot be a substitute for relationships that occur in more normal settings.
Although the people who run children’s contact centres do their level best to make them child‑focused and friendly, they are an artificial setting, somewhat institutionalised and stilted. It is not a normal way for a parent to interact with a child, to have the feeling that somebody is observing everything you do and noting it down.
Contact centres, of course, do achieve their primary goal, which is to ensure the safety of those concerned including, sometimes, parents, who are safeguarded from untrue allegations of misconduct.
Legal principles applicable
In any event, the law is also clear, in cases such as Moose & Moose,[2] that supervision cannot be the panacea for child parent relationships ad infinitum. Also, other families need to use the children’s contact centre, so there has to be, in the jargon, throughput so others get their fair share.
[2] Moose & Moose [2008] FamCAFC 108
I have to apply the provisions of the Family Law Act, and everyone knows that the best interests of the two children concerned are the paramount consideration. In determining what is best for Y and X, I have to consider a list of matters in section 60CC of the Act.
There are two main things I have to consider. Protective concerns; I have to ensure that the children are protected from the adverse consequences of being exposed to family violence, neglect or abuse. I also have to consider the benefits the children are likely to derive from having a meaningful level of relationship with each of their parents. The law prioritises protective concerns, and so in a case like this one, I have to assess risk.
Discussion
The mother’s case is that the father cannot control his temper and that X and Y are challenging children, as many children are, and that if they do something slightly unexpected, Mr Milberg will lose his composure and hurt them.
I cannot definitively ascertain that Mr Milberg will not behave inappropriately in the future; nobody can. However, I have to assess the level of risk and put in place responses which are proportionate to the degree of risk, which I have to assess objectively. The court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
So, in a case like this, I have evidence that the children have a positive relationship with their father and so are likely to benefit from interacting from him. I also have to consider the possibility that, for complex reasons, Ms Milberg is not capable of supporting the children’s relationship with their father because of her animus for Mr Milberg.
One of the roles of being a parent is to encourage and support a relationship between a child and the other parent. Although many people wish for the person with whom they were previously married or involved with to drop out of the case entirely, that does not happen. Mr and Mrs Milberg are probably going to have to work together for a very long time.
It is difficult to assess risk in the context of an interim hearing, however, I have more evidence than I had in February and May of this year. I have the children’s contact centre report. It is positive. There are numerous indications that the children had a good time with their father. They sent him Post‑it notes saying, “You are the best Dad…Y loves you.”
They cuddled him when they said goodbye to him. X was reported as jumping onto her father’s knee to say goodbye and lent her head down to his chest as he whispered in her ear, “Goodbye and thank you for coming to see me” and “See you next time. I love you”. X replied, “I love you too” with a warm tone. Y gave Mr Milberg a couple of goodbye cuddles and said, “I love you” as well.
So there are positive aspects that the children are going to benefit from having a relationship with their father. As Ms Atchison has pointed out, it is not my function to punish Mr Milberg for things that he may have done badly in the past; that is the function of the criminal law. My responsibility is to concentrate on the best interests of the two children concerned.
I have to assess risk, and in such cases as Dieter & Dieter,[3] which is a decision of the Full Court in 2007, the Full Court indicated that, in assessing risk, I have to consider two elements. The first requires a prediction of whether it is likely that some harmful event will occur, and the second requires consideration of the severity of the impact caused by those events.
[3] Dieter & Dieter [2007] FamCA 608
Is it probable that Mr Milberg will lose his composure over four hours on a Saturday afternoon with the children? It is possible, but I do not think it is pressingly likely. If he does lose his temper, what are the implications? Well, it depends on the context, and the test is, is the risk and the impact so great that it is unacceptable for me to take it? Well, I do not think it is unacceptable for me to take it.
I do not know what is in the section 69ZW material – but I note that the Department has had ample time, if there is something in that material, to cause it to bring an application in the Youth Court, and it has not – and I am concerned that it is an example of the process driving the case rather than focusing on what is in the best interests of the children concerned.
So, for those reasons, I am persuaded that it is appropriate that I make the orders that are advocated by Ms Atchison. I accept that she has formulated these orders in discharging her statutory obligations.
I will make the orders, order a family report and adjourn the further hearing of the matter to 9.30am on 26 November 2020. The time is 4.30pm, commencing a week from today, which is the 26th.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 3 December 2020
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