Mitchell and Mitchell

[2011] FamCA 812

FAMILY COURT OF AUSTRALIA

MITCHELL & MITCHELL [2011] FamCA 812

FAMILY LAW – CHILDREN – father to spend time with the child – time to be in the presence of, and supervised by, the father’s partner.

APPLICANT: Mr Mitchell

RESPONDENT: Ms Mitchell

FILE NUMBER: (P)BRC 7635 of 2010

DATE DELIVERED: 20 October 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 14 October 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Craney Family Lawyers

SOLICITOR FOR THE RESPONDENT: Winder Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms D Burns

SOLICITOR FOR THE INDEPENDENT CHLDREN’S LAWYER: Adams & Associates

Orders

1. The child B born … 2001 spend time with the father as follows:

   (a)       on Saturday 3 December 2011 from 10.00 am to 4.00 pm;  and

   (b)       on Sunday 4 December 2011 from 10.00 am to 4.00 pm;

   Such time to be in the presence of, and supervised by, the father’s partner, Ms C.

2. The mother shall make the child available for periods of time with his father at a changeover venue agreed between the parties, and failing agreement at D Town and for the purposes of changeover, Ms C will collect the child from and deliver him back to the mother at that venue.

3. At the time of the first changeover the mother shall provide Ms C with a contact telephone number for herself, and Ms C will provide a telephone number where she and the father can be contacted.

4. The mother shall do all things necessary to enable the child to attend on the Independent Children’s Lawyer for an interview on a date and at a time to be arranged and failing agreement otherwise at 4.00 pm on 5 December 2011.

IT IS FURTHER ORDERED BY CONSENT:

1. The parties shall provide to the Court by 4.00 pm on 28 October 2011 a Minute of Order for the appointment of a Single Expert to prepare a Chapter 15 report, including but not limited to:

   (a)       the name of qualifications of the Expert;

   (b)       the issues to be addressed by that Expert in the report;

   (c)       a schedule for payment of fees if applicable;

   (d)       the availability of the proposed Expert in the early months of 2012.

IT IS NOTED that publication of this judgment under the pseudonym Mitchell & Mitchell 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 NEWCASTLE

FILE NUMBER: (P)BRC7635 of 2010

Mr Mitchell

Applicant

And

Ms Mitchell

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application by the father filed 6 July 2011 for orders enabling him to spend time with his son B born in 2001.  The parties agree the child will live with his mother.

2. This was an urgent interim application in the duty list on 14 October 2011.

3. The parties had the assistance of a family report prepared by Ms E and released on 5 July 2011.

4. The mother lives in Queensland, the father lives in Suburb F with his partner Ms C and her son G, who is 15 years old.  They have been living together for about two years.  This matter is listed before me on 5 December 2011 for the first day of a Less Adversarial Trial.  The parties are required to be personally present and to participate on that day. 

5. There was a willingness to bring the child down to H Town for the weekend prior to that day in Court to spend time with his father.  The application of the mother is for supervised time in a Contact Centre.  The application of the father was for time to be supervised by Ms C. 

6. The dilemma is this.  There are serious allegations made by the mother and others about the father, that he quickly becomes threatening and abusive, that he has an explosive and unpredictable temper, that he can be frightening.  On

the other hand, the child would like to have a relationship with his father and expressed a clear view to the family consultant (par 100) that he would like to commence spending time with the father, to play football, go for drives or go fishing.  The child thought he would like to start spending some overnights with his father but thought three nights would be his limit initially.

1. The child misses his father but also holds some anxieties about the father threatening to hurt the mother, or to take the child away from the mother.  Past events are justification for the child feeling a bit anxious.  On the occasion when the child was seen with his father and Ms C, the child was immensely pleased to see his father, comfortable with Ms C and there appeared to be genuine pleasure in the reunion.  Unfortunately, the father did not cope well with the child’s distress at being parted from his father and became agitated, loud and at least denigratory, if not threatening.

2. The recommendation in the report at par 117 was that until there could be further investigation and a final hearing, the father spend day only time with the child in the Suburb J area, supervised by Ms C, until the father had engaged with his psychiatrist for a six month period.  There was then a recommendation for holiday time in Suburb F, supervised by Ms C.  The family consultant clearly felt some confidence in Ms C. 

3. Ms C gave evidence before me on 14 October 2011.  Having heard her cross-examined by the legal representative for the mother and the Independent Children’s Lawyer, I shared that confidence.  Whilst Ms C was inclined to underplay her partner’s conduct on the day of the interviews, I took that to be a sign of her comfortable ability to manage her partner’s emotional reactions.  There was this exchange:

   Question:If there was anything inappropriate going on what would you do?

   Answer:I’d step in and not allow it.  I’d take [Mr Mitchell] aside and say this is not on.  I would ask the child, what would you like to do?

   Question:       What if the child said he did not want to leave.

   Answer:I’d ring [Ms Mitchell] and tell her anyway.  I would take the child away and contact the mother.  Regardless of whether it causes problems with [Mr Mitchell] and I later, the child will come first.

4. This theme was repeated by Ms C more than once and I accept that that was her genuine conviction.  She has two children from her first marriage, an adult daughter and a 15 year old son who lives with her.  She gave evidence of the strength of the relationship that has developed between her son G and the father.  He has taken him fishing, taught him how to tie knots and to fish, helped with his homework, got involved with some fitness training and encouraged him to take exercise.  Ms C appears to be genuinely pleased and grateful for the relationship that has developed there.

5. Another matter that impressed was the list of considerations that had been developed by Ms C, who had not anticipated giving evidence at all, in consultation with Mr Craney, solicitor for the father.  The list included if there were to be two supervised visits, no alcohol, no drinking, no risky events or games, that Ms C would stay close to the child, that Ms C would keep her phone close in case the child needed to ring his mother and that there would be no discussion of the Court proceedings.  I am confident that Ms C would terminate a situation if the child became unhappy or felt unsafe and would give his needs priority.

6. The Independent Children’s Lawyer was opposed to Ms C as a supervisor and tendered into evidence documents which tended to support the proposition that the father has a threatening and aggressive demeanour at times.  The documents were produced by Ms I[1], the father’s consulting psychologist so all of the material came as a social history given by the father.  I note that one of those entries on 21 April 2010 says this:

   I rang the police today and over-reacted.  I said stuff to the police and called him a liar.

   Likewise the father reports that when he was served with papers at work, it “stressed him out”.

   [1]   Exhibit ‘ICL 2’

7. All this material indicates positively that the father is engaging with his psychologist and talking about those incidents and events that have been difficult for him and an impediment to a better relationship with his son.  This is to be encouraged and is an appropriate course for the father to have taken.  Likewise the reports from Suburb F Medical Practice are all information that comes from the father.  There is again a reference to the father having an “emotional meltdown” around an AVO order in H Town and a note that the father broke down and cried when he was ordered not to talk to his son in Queensland.  There is abundant evidence that the father has a volatile nature and can be frightening and threatening to others.  The extent to which this will be a problem for the development of a relationship between the child and his father is a matter for the final hearing.

1. At this stage and for this particular weekend, I propose to follow the recommendations of the family consultant, noting the child’s strong views that he wishes to have that relationship and time with his father and that he now has not seen him for four months.  I balance that against the need to keep the child safe and I am satisfied that Ms C will be an adequate and reliable supervisor in that regard. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 October 2011.

Associate:  Ms K Clarke

Date:  20 October 2011