Mussa & Wise
[2022] FedCFamC2F 1725
Federal Circuit and Family Court of Australia
(DIVISION 2)
Mussa & Wise [2022] FedCFamC2F 1725
File number(s): MLC 4340 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 November 2022 Catchwords: FAMILY LAW – interim parenting arrangements – when parents live in different regions in Victoria – where supervised contact should commence – high conflict – allegation of family violence – option easiest for the child and least likely to expose child to family violence – review in 3 months – inherent contradiction in each party’s case – employment indicates mother rehabilitation well underway. Legislation: Family Law Act 1975 (Cth) ss 60CC, 69ZL. Cases cited: Eaby & Speelman (2015) FLC 93-654.
Goode & Goode [2006] FamCA 1346.
Division: Division 2 Family Law Number of paragraphs: 34 Date of hearing: 16 November 2022 Place: City B Counsel for the Applicant: Mr Carne Solicitor for the Applicant: Aila Rose Melasecca Barristers & Solicitors Counsel for the Respondent: Ms Skinner Solicitor for the Respondent: Morrison & Sawers Counsel for the Independent Children's Lawyer: Mr Nicholson Solicitor for the Independent Children's Lawyer: Medson Legal ORDERS
MLC 4340 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MUSSA
Applicant
AND: MS WISE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 NOVEMBER 2022
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The matter be adjourned as follows:
(a)For mention on Monday 6 February 2023 at 10.00am in the February 2023 sittings of the City B circuit; and
(b)For final hearing on Tuesday 30 May 2023 at 10.00am in May 2023 sittings of the City B circuit.
2.The parties do all acts and things and sign all documents necessary by 4pm on 18 November 2022 to enrol in the C Children’s Contact Service in Suburb D (or other location as agreed) (‘the contact centre’) and thereafter complete the intake process with the contact centre within seven (7) days of the contact centre’s request for same.
3.The parties do all acts and things to ensure that:
(a)upon completion of the intake process and the contact centre indicating availability to commence time, the child X (‘the child’) spend supervised for two (2) hours with the Mother at the contact centre at such times that the contact centre is able to accommodate on Saturday; and
(b)for that purpose the Mother shall attend such supervised time alone; and
(c)for that purpose the Father shall cause and ensure he does not attend at or near the contact centre and he is permitted to arrange for his partner, Ms J, to deliver and collect the child to and from the contact centre.
4.The Mother shall make an appointment and attend for hair collection at an Australian Workplace Drug Testing Service (“AWDTS”) Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-custody procedure is to be applied to the hair sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this Order:-
(a)the Mother is required to maintain her hair length at a length not less than four (4) centimetres, neither head hair or body hair is to be bleached or dyed until such time as the hair sample has been collected;
(b)the Mother is required to attend for collection no earlier than 14 January 2023 and no later than 21 January 2023 with the appointment for same to be made with AWDTS by telephoning 1300 37 84 83 for the purposes of providing a hair sample for hair drug testing purposes;
(c)the Mother or her legal representatives are to provide AWDTS with a copy of these Orders;
(d)the Mother is to attend an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample as directed by the said Clinic or nominee;
(e)the Mother is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this Order also hereby authorising AWDTS or nominee to provide the results of each test to the legal representatives for the Father and the Independent Children’s Lawyer upon receipt of such results;
(f)the hair drug test shall screen for excessive alcohol consumption and for drugs of abuse including amphetamine-type substances such as methamphetamine and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other illicit drug;
(g)AWDTS is required to utilize the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognized International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with International Society of Hair Testing (SoHT) guidelines, cost and time required for results to be made available; and
(h)The cost of the hair drug test is to be met by the Mother.
5.The Mother forthwith do all acts and things and sign all documents necessary to engage with a drug and alcohol counselling service approved by the Independent Children’s Lawyer and continue to attend upon same until such time as the relevant service indicates that attendance is no longer required.
6.Within seven (7) days of these Orders the Mother provide to the Father’s solicitors and to the Independent Children’s Lawyer the names of her current psychologist and psychiatrist (referred to at paragraph 2 on page 31 of the affidavit of Dr E filed on 11 November 2022).
7.Within twenty-one (21) days of these Orders the Mother provide to the Father’s solicitors and the Independent Children’s Lawyer a letter from her treating general practitioner stating all current medications for which the Mother is prescribed, the reason for such prescription and all known diagnoses and medical conditions of the Mother.
AND THE COURT NOTES THAT:
A.The existing order for FaceTime communication each Sunday (paragraph 3 of 9 September 2022) continues in force.
B.The C Contact Centre in Suburb F may have be available instead of Suburb D.
C.This matter was listed for final hearing on Tuesday 15 November 2022 but was rolled over with no orders to Wednesday 16 November 2022. The matter was heard on Wednesday 16 November 2022 and rolled over with no orders until today. Today’s listing was for a res tempore judgment delivery.
D.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
F.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Mussa & Wise has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
RES TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered res tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
This matter came before me on Wednesday 16 November 2022 in the November 2022 City B Circuit sittings of this court on a day with more than half a dozen cases listed, and several requiring court decisions. The matter concluded after the Court's usual hours on Wednesday 16 November, and I adjourned the matter until this morning at 9:30am for judgment delivery. Hence these reasons are res tempore, not ex tempore, that is given orally shortly after the close of argument, but not immediately thereafter.
The questions I must decide are of limited duration, but significant. The question I must decide, of great significance to the parties, is whether the commencement of the Mother's face to face time with the child should take place at a child contact supervision centre in an outer suburb of Melbourne or in City B. The Father lives in Melbourne and the Mother lives in City B. The residences of the parents are about 2.5 hours’ drive apart, or sometimes a bit less than that depending on traffic.
The parents have a child who is now 7 years old (“the child”). The Father is aged 44 years old and the Mother is aged 37 years old. Both are in full time employment. The Mother has another child from the previous relationship who is now 18 years old. The Father has six other children from two other relationships, aged 27, 22, 17, 3, 2 and 8 months old. The parents commenced cohabitation about 2007 and separated sometime in 2017. Since 2018, the child has lived with the Father. In July 2021, the Father moved to Melbourne together with the child, his other children that live with him and his current partner. The Father's parents continued to live in City B.
There has been a long hiatus in the process of the Mother reconnecting with the child. The recent history of those events are that the Mother and the Father had, via solicitors, commenced to agitate the issue of the Mother spending time with the child. Pursuant to that conversation, the Mother undertook a hair follicle test on 28 January 2021. That test was presented to Dr G on 26 February 2021. At that time Dr G opined that the prescription drugs which had been identified in the hair follicle test were consistent with those prescribed to the Mother.
On 20 April 2021, the Father issued proceedings, and hence is the Applicant in the matter. The Mother filed documents in this proceeding on 5 August 2021 and the first return hearing was on 12 August 2021, with the Mother attended those proceedings in person.
On 9 September 2021 there was an order by consent for weekly FaceTime. That order was for the child to have FaceTime calls with the Mother each Sunday. By and large that time, or that connection, has continued since, although it has been controversial as to how well that has worked.
On 18 October 2021, orders were made for the preparation of a family report and the Mother attended court on that occasion. It appears to be not disputed that around about late 2021, the Mother commenced full-time employment, and I draw that inference from the fact that when the Mother was interviewed for the family report on 21 June 2022, she had been in employment for about seven and a half months. By mid-2022, by the previous orders, the Mother should have engaged with a psychiatrist for a psychiatric report and undertaken a second hair follicle test. Neither of those events occurred. However, on 21 June 2022 the parents attended Ms H for the purpose of the preparation of the family report.
On 29 July 2022, the matter returned to court and the Mother did not appear. That July hearing was about vacation of a final hearing that had been listed in the August 2022 City B Circuit sittings of this court. That final hearing was adjourned to the November 2022 City B Circuit sittings of this court.
On 21 September 2022, the Mother undertook a hair follicle test and, on the information I have, that hair follicle test covered a period of three months. That is roughly back to the time of the family report interviews. That hair follicle test was clear of all substances. The matter then came before me on 16 November 2022. The parties have had the courage, maturity, and insight to largely agree to the way forward for the child, save for the two matters which I am to determine this day.
The further difficult background to this matter is as described in the family report, which includes the following follows:
75.The dispute is over whether [the child] starts spending time with [the Mother] or whether they continue face time communication. It may be about two plus years since [the child] has spent time with [the Mother] up until the observation session for this report. When [the Mother] last spent time with [the child] it was supervised by the paternal grandmother. I understand since the separation, [the child] has not spent time with[the Mother] unsupervised.
76.From my observation of [the child] with [the Father] and [[Ms J]], [the child] appeared to have a warm and close relationship with [the Father], a warm and accepting relationship with [[Ms J]] with both of these relationships demonstrating that [the child] feels secure and trusting of them.
77.From my observation of [the child] with [the Mother], [the child] seemed to feel familiar with [the Mother]; she was able to relax and appeared to be comfortable. [the child] seemed warmly accepting of being with [the Mother]; they interacted positively; at no time did [the child] demonstrate she was fearful or did not want to be there; overall they seemed happy and enjoying this time together.
…
79.There is a high level of conflict between [the Father] and [the Mother] which prevents them from developing a co-operative parenting relationship. Prior to the separation, [the Father] would have had ongoing concerns about [the Mother] given her drug addiction. There are clearly unresolved issues from their relationship and separation. [The Father] has no trust of [the Mother] for genuine reasons in regard to her drug addiction. [The Mother] alleged [the Father] was violent which [the Father] denied. These allegations would need to be tested in Court.
…
81.[The Mother] acknowledged she had a ‘pain killer addiction’ as she referred to her addiction, but she then referred to it as ‘self-medicating’, she also acknowledged she attempted many overdose attempts as well as self-harming, for which she blames [the Father] for all of this alleging he was violent which as noted above, [the Father] denied. [The Mother] also acknowledged that the children were at risk as a result of her addiction. [The Mother] now claims that she is ‘off all pain killers’ which her mother helped her to do. On the other hand, [the Mother] then provided a list of all the ‘pain killers’ she still takes so she contradicted herself by saying she is now off all ‘pain killers’ but then provided a list of the ‘pain killers’ she now takes. It is my view, that this leaves a concern as to what level of risk [the Mother] still poses. [The Mother] must have a psychiatric assessment and report before any consideration could be given for her spending time with [the child]. While [the Mother] said that she now has Webster packs from her pharmacy, there is still nothing preventing her from taking a week’s supply of prescribed medication. One of the prescribed medication [the Mother] mentioned is Lyrica, which I understand may sometimes cause addiction, with the risk being higher if the person has a substance use disorder (this information is available online), which is why it is very necessary for [the Mother] to have a psychiatric assessment and report so the psychiatrist can assess [the Mother] appropriately.
Dr E's report, containing the psychological assessment of the Mother, contains the following relevant passages:
1.…[The Mother] reports she has a history of borderline personality disorder, complex posttraumatic stress disorder, anxiety and depression and first had contact with mental health services when she was 12 years old. She reported a history of at least 15 admissions to acute psychiatric inpatient units with t NSW Mental Health Act facilitating treatment as an inpatient and in the community. She is prescribed regular psychotropic medication. She reports she has epilepsy. [The Mother] reports a history of substance abuse of over the counter pain relief medication. [The Mother] works as a [[Company K]] Consultant and she lives with her fiancé in [City B]…
2.On assessment today there was no evidence of any major mental illness that requires immediate psychiatric treatment. She reports she is engaged with a psychologist periodically and has annual medication reviews with a private psychiatrist. Beginning in adolescence, [the Mother] has a long history of contact with mental health services in context of emotion regulation difficulties, self-harm and suicidality. She has been diagnosed with borderline personality disorder, complex posttraumatic stress disorder, anxiety and depression and in adolescence she received mental health treatment as an inpatient and in the community with the Mental Health Act facilitating that treatment when needed. She has engaged assertively in treatments that are designed to promote improvement in emotion regulation in those with borderline personality structures, particularly Dialectical Behaviour Therapy (DBT) and Cognitive Behaviour Therapy (CBT). Both these approaches have been beneficial in reducing self-harm, suicide and depressive thoughts. [The Mother] has a positive family history of mental illness, which is a genetic vulnerability that predisposes her to developing a mental illness. [The Mother’s] mental health is currently stable. She works fulltime and she is in a supportive relationship. There is evidence that her chosen treatment approaches have helped her to mature out of her personality difficulties.
…
5. [The Mother] demonstrated a good understanding of her early childhood and adolescent difficulties…
The matter is further complicated by the fact that the Mother holds only a learner’s permit driving licence. She suffers a number of medical conditions including epilepsy, and the epilepsy impacts on her ability to obtain a license. Hence, for practical purposes, for the time that is to occur at a child contact centre, if in Melbourne, the Mother will have to travel by train to Melbourne. That will take all day. She will have to leave on a train at about 7.00 am and won't return until late in the evening. The last train back leaves Melbourne at 7.00 pm.
The other aspect that is relevant to the matter are the circumstances of the Father’s regular travel to visit his parents. The family report reports:
24.…[The Father] said that his parents live in [City B], that he used to live about 800 metres from them, then he and [[Ms J]] moved to Melbourne about 15 months ago. [The Father] said that he usually visits his parents about once a week; his parents who are very supportive are very involved with [the child] as well as all of their other grandchildren.
(Emphasis added)
The Father's case was that, in all the circumstances, it was in the child's best interest that the time occur in Melbourne, not in City B. His arguments included:
·The financial cost to him;
·The cost in time and difficulty to his family (with the many children that he and his partner support) in that it would effectively be an all-day Saturday interruption of the usual regime for each alternate Saturday;
·The child has sports of a Saturday, which would be able to be continued if the contact was in Melbourne;
·His daughter has been studying in Melbourne but will no longer be, and that is reason for him to attend City B less often;
·That his parents will not remain living in City B but will move to Melbourne; and
·It will take two cars for him to travel up and down.
The Father's case was that I should have real doubt as to the Mother's capacity to continue to engage in the proceedings and engage in the child's life in the circumstances of this family’s history, which I have recited. I note that the Mother didn't attend court on 29 July 2022, she didn't obtain the second hair follicle test, and she hadn't obtained the psychiatric report at the time it was contemplated. Nonetheless, I do not accept the assertion that I should have real circumspection about the likelihood the Mother continuing to maintain an involvement in the child's life and continuing to pursue these proceedings. I am satisfied, notwithstanding those three things that the Mother did not manage to attend to, that she will continue to engage in these proceedings, and, more importantly, to engage in the child's life.
The proceedings had the unusual or rare event of video or CCTV footage of an incident occurring yesterday morning at the entrance of the court building between the Father and the Mother's partner, or on her account, recently previous partner. It is put that I should be circumspect about whether the Mother is with that partner or not, although I will call him “the Mother’s partner”. The Mother had described that relationship at the time of the family report interviews on 21 June 2022 as a very warm and appropriate relationship. However, it is not beyond the bounds of reasonable human events that that relationship too may have recently broken down. The incident that was played shows the Father becoming agitated when confronted by the Mother's partner. It also shows that the Father returned to that incident whilst agitated and, I infer, angry, on what appears to me to be two occasions. I have only watched that incident once in Court and there is no sound to go with it. It is put in the Mother's case that this incident so heavily corroborates her assertions of family violence, domestic violence and violence at the extreme end from the Father that I should accept, for the purpose of these proceedings, that there is a real risk to the Mother and the Mother's person if she is to attend in Melbourne.
They are the broad circumstances in which I deal.
The procedure applicable to an interim parenting orders hearing is set out in Goode & Goode [2006] FamCA 1346:
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Those principles are qualified by the observation of the Full Court in Eaby & Speelman (2015) FLC 93-654 as follows:
18.…It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:
[122]In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The end result is that I am not prepared to make any finding as to who started the altercation and what followed thereafter, save that it does indicate that the Father has the capacity, at least when confronted on his case with unpleasant words, to quickly anger and to find it difficult to remove himself from the situation. The role that his solicitor played in getting between him and the Mother’s partner, and maintaining that position, is to be congratulated. Many would see that as brave and far beyond the role of what a solicitor is meant to do. The Mother's case was that the extent of the violence that she had suffered, and she says it being corroborated by the video footage, means that there was a real risk of harm to her if she was to travel to Melbourne, and further that there was the apprehension to her. For those reasons, she says, the Father should bring the child to City B for the agreed supervised time.
The Independent Children’s Lawyer's position supported the Mother's position, in that the Mother was entitled to the assurance and comfort of her own environment in travelling to the contact centre and that the Father, by pressing the matter to be in Melbourne, was setting up the time to fail.
I should add that the Father, by the end of the hearing, volunteered the position that if there was a concern as to the Father's presentation at a contact centre that he would do all things to ensure that he did not attend either and that he would ensure that his partner, Ms J, did instead.
Turning to the primary considerations. It is now common ground that it is in the child's interest to have the benefit of a relationship with both parents, including her mother. The additional considerations here only partly assist this decision, as it ultimately comes down to one of practicality.
Significant and relevant additional consideration is section 60CC(3)(i) of the Act, that is the attitude to the duties and responsibilities of parenthood. An important aspect of parenthood is the support of the other parent's relationship. That means the support of the other parent's relationship with the child whether it is difficult or hard. Section 60CC(3)(i) does not say that the parental relationship or that the attitude to the responsibilities of parenthood should be considered only when it is easy or convenient. Parenthood, and the responsibilities of it, continue over many years, and involve very significant difficulties in a multitude of ways, and a multitude of unforeseen ways.
I should also add, the Mother proposed the Husband's parents in City B as alternate supervisors, but that was vetoed by the Father. I do not know whether his parents would have been agreeable to the heavy burden of supervision or not. In any event, there are real advantages to this family and this child by a supervised facility as each proposes.
There is an inherent contradiction in each party's case. If the Mother's rehabilitation and stability is as advanced as she says it is, she will well cope with the practicality and difficulty of an order to travel to Melbourne for the purpose of seeing the child. If the basis of the Father's scepticism about the Mother's rehabilitation and mental stability is as well-founded as he says it is, he should be promoting that he would bring the child to City B. One matter that I place very considerable weight upon is that the Mother has now, for some time, been in regular full-time employment. That tells me a lot about the reality of her rehabilitation and stability.
The matter that weighs most heavily for me is what will make it easiest for the child to be able to progress her relationship with her mother. It is very important that the child be as least influenced as can be by the high conflict between the parents. I am satisfied on this interim hearing on the limited factual findings that I can make that the Mother's rehabilitation and stability and mental stability, is significantly more advanced than the Father fears. The consequences of that is I am satisfied that, notwithstanding the personal difficulty to her, that she will be able to get to Melbourne by train every second Saturday. It is common ground that the supervision time in each place will only be on an alternate weekend basis. In any event, the Mother's electronic FaceTime with the child will continue.
I am sufficiently concerned about the Father's labile emotional state that I will embrace the proposal that he makes. I will order that he will not attend the supervision centre and that his partner or someone else do so. But he is to do all things to ensure that the child is delivered and collected from the centre without him being there. I am not satisfied that there is a greater risk to the Mother of travel from her home to the centre in City B as opposed to travel from the railway station in the Melbourne CBD to the contact centre.
The Melbourne contact centre is within walking distance, although a fair hike of 1.2 kilometres from the local train station, but it is also well within rideshare (taxi or Uber) distance. It will be difficult for the Mother, but I am satisfied that she has sufficient stability and rehabilitation to cope with that. It is very important that this relationship for the child is promoted and proceeds.
The further matter that is in dispute is whether the matter should return in February or May 2023 for review of the care arrangements. As a consequence, the question is whether I fix a final hearing in either the May circuit or the November circuit. I am satisfied, and adopt the Independent Children’s Lawyer's submission in that regard, that there is sufficient time for a number of supervised visits between now and the February circuit. The matter will be listed for Mention in February and final hearing in May 2023. The burden on both the Mother and the child of the supervision must not be underestimated, nor should the practicality of just how long that can go on for.
Neither party should take it from these reasons that the fact that I have decided to determine this impasse of which supervision centre by ordering the Melbourne facility in any way limit the range of decisions or what would happen in February upon review. I had contemplated making the matter an alternative arrangement: one fortnight in City B and one fortnight in Melbourne, but in the end, I have determined that the easiest way forward for the child, with the least stress and conflict for her will be if this supervision time commences in Melbourne. Clearly supervision cannot be a long-term arrangement, or maybe not even a medium-term arrangement. Those matters can be reviewed in February and whether or not they are altered will be determined then or at final hearing.
I will include the notation that the existing order for FaceTime continues.
I will also note that another branch of the supervision centre in another suburb of Melbourne that may be easier for the Mother to access may become available for the supervision. It is implicit in these orders that both parties are to do all things to immediately arrange for that intake process. Because neither party is getting everything they want, I would not want this to be a matter where, somehow, there is a glitch in that intake process.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Res Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 13 December 2022
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