Myer and Givan

[2018] FamCA 1080

FAMILY COURT OF AUSTRALIA

MYER & GIVAN [2018] FamCA 1080

FAMILY LAW – CHILDREN – Consent orders.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Myer

RESPONDENT: Mr Givan

FILE NUMBER: MLC 9890 of 2015

DATE DELIVERED: 15 October 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: 15 October 2018

JUDGMENT OF: Baumann J

HEARING DATE: 15 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms L McCreadie

SOLICITOR FOR THE APPLICANT: Lander & Rogers

SOLICITOR FOR THE RESPONDENT: Hughes Watson Marks Kennedy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Hughes Watson Marks Kennedy

INDEPENDENT CHILDREN’S LAWYER: S Macgregor
Macgregor Barristers & Solicitors

Orders

1. That the mother have sole parental responsibility for the children, X born … 2010 and Y born … 2012 (“the children”).

2. That the children live with the mother.

3. That subject to Orders 5 and 6 hereof, the children spend time supervised time with the father as follows:

   (a)Six (6) times per year, the first Sunday of every February, May, July, October, December and on Father’s Day (save for the first four (4) visits which are to be on a Saturday);

   (b)That the first four (4) visits be supervised by the B Contact Service, and thereafter that they be supervised by Ms C (professional supervisor) and in the event Ms C is unavailable her nominee subject to Order 6 herein (collectively “the supervisors'”, with the father to pay the full cost of the supervision (including any reports); and

   (c)That the first four (4) visits be for a duration of two (2) hours, with the next four (4) visits to be for a duration of four (4) hours, and thereafter the visits be for a duration of six (6) hours.

4. That the mother be at liberty to request that the supervisors prepare written reports (with the request limited to no more than two times per year), with the father to pay the cost of those reports.

5. That the father be required to continue to attend upon Mr D or such other qualified clinical or forensic psychologist:

   (a)and provide the mother with a report from his treating psychologist in relation to his treatment and his mental health status, within twenty one (21) days of receiving a request for the production of a report from the mother (with the request to be limited to no more than two (2) times per year); and

   (b)to notify the mother (via written notice provided to the supervisors) within seven (7) days of any changes to his psychologist; and

   (c)the mother be at liberty to provide the father’s treating psychologist with a copy of Ms E’s family report; reports of the parents and/or the children’s treaters filed in these proceedings and the Reasons for Judgment delivered 15 October 2018.

6. That for the purposes of the supervised time:

   (a)after the first six (6) visits the father be permitted to have any the children’s immediate family present at the visits for up to one (1) hour and that otherwise the father be and is hereby restrained from allowing any other person (including the father’s partner or partner’s children) from being present at the visits;

   (b)the father be and is hereby restrained from taking the children to F Street, Suburb G;

   (c)such time to occur at a venue as agreed between the supervisor and the mother;

   (d)drop off and pick up be as agreed between the supervisor and the mother;

   (e)the supervisor be required to sign an undertaking to the Court as set out in Annexure “A” hereto; and

   (f)the mother be at liberty to provide the supervisor with a copy of the documents as set out in Order 5(c) hereof.

7. That in the event that the mother cancels time that there be make-up time within fourteen (14) days and subject to the supervisor's availability.

8. That the mother authorise and direct any child care centre or kindergarten or principal of any school attended by the children or either of them, to provide the father, at his expense, copies of all school reports and application forms for photographs which are normally available to parents (save for access to the school portal) (provided that such school reports and application forms for photographs do not include the mother’s and/or the children’s addresses and/or contact details).

9. That the mother shall as soon as reasonably practicable advise the father via the supervisors of any significant medical illness or injury affecting either of the children, whereby a significant medical illness or injury is defined as one whereby the children or either of them have spent an overnight in the hospital and/or have been diagnosed with a permanent medical condition.

10. That except as otherwise provided for in these Orders, the father be and is hereby restrained by injunction directly or indirectly, where through a third party or otherwise from (save for as set out in these Orders):

    (a)contacting or communicating with the mother and/or the children;

    (b)approaching or remaining within five (5) metres of the mother and/or the children;

    (c)going to or remaining within two hundred (200) metres of any other place where the mother and/or the children lives, works or attends school/childcare; and

    (d)publishing on the internet, by email or other electronic communication any material about the mother and/or the children.

11. That save for an application to enforce these Orders the father must seek leave to make an application to the Court to vary these Orders prior to the expiration of the existing Intervention Order in the Magistrates Court naming the father as the Respondent and the mother and the children as the protected persons.

12. That the mother be at liberty to provide her psychologist and the children’s psychologist with a copy of Ms E’s family report; any report of the parents’ treaters filed in these proceedings; and Reasons for Judgment delivered 15 October 2018.

13. That all previous Orders be discharged.

14. That the Independent Children’s Lawyer be discharged.

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
Myer & Givan 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 MELBOURNE

FILE NUMBER: MLC 9890 of 2015

Ms Myer

Applicant

And

Mr Givan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. X aged eight and Y aged six are the two children of a short relationship between the Applicant mother, Ms Myer and the Respondent father, Mr Givan.  I am satisfied even though the evidence was not tested in the usual way as the parties reached consent orders that:

   a)the father had a history of criminal conduct involving violence offences from young adulthood.

   b)the parties commenced cohabitation in approximately February 2010 and separated approximately 4 years later in November 2014.

   c)there were incidents of family violence during the course of the relationship although, I am not able to identify with particularity, without testing all the evidence, how many instances there were or the severity of those. At least one incident was directly corroborated namely the incident on the mother’s 40^th birthday in 2014.  That seemed to be towards the end of the relationship which as I say finished in November 2014.

2. Since the separation, whilst there were some attempts to informally regulate the father spending time with the children, there was an incident on 25 December 2014 which brought those arrangements to an end.  That incident appears to have left some effect on the children based on what they have told their counsellor, Ms H.  The parties negotiated, before the commencement of orders, some supervised visits which took place between April and June 2015.  There was however a conviction of the father in respect of breaches of Intervention Orders made on 15 May 2015 which resulted in him receiving a Community Corrections Order.

3. In October 2015 the mother commenced proceedings in the Federal Circuit Court (“FCC”) and initially a family report by Ms J, released on 31 March 2016, was prepared.  The report at that stage suggested that there should be six months supervised time before moving to unsupervised time.  Consistent with that report and pending a trial before a Judge of the FCC, the FCC made orders for supervised time on 5 April 2016.

4. From about June 2016, the mother began a therapeutic relationship with psychologist Dr K.  Her report in respect of the mother is before the Court and again I note has not been subject of cross examination.  The father spent time supervised at the B Contact Centre between May 2016 and March 2017.  There was an alleged incident at B Contact Centre that caused the Centre to suspend time and then there was an Order made in April 2017 to suspend time pending an early trial before a judge of the FCC but that was then vacated and the matter then transferred to the Family Court. In October 2017 Senior Registrar FitzGibbon formally suspended the time.  Thereafter from November 2017 the children have been engaged in therapeutic counselling with Ms H, a psychologist, and her report is before me.  Again that report has not been the subject of cross examination but I have read it.  A new family report was ordered by Justice Johns and interviews took place on the 22nd of August 2018.  That report has been released and I have read and considered its contents. Again, the evidence has not been tested.

5. The mother and the children are named as protected persons and have the benefit of a five year intervention order made in the Magistrates Court of Victoria.  A copy of the transcript from those proceedings was filed in this Court by the solicitor for the mother.  I had read that transcript but of course I accept that also was evidence that the father may have wanted to have been heard on or speak about.  Nevertheless the effect of the proceedings was that an Intervention Order for a period of 5 years to March 2023 has been made and is in force.

6. Even when Courts are asked to make consent orders they are required as a matter of law to be satisfied the orders are in the best interests of the children.  Clearly parents, especially those with the benefit of independent, quality legal advice who reach an agreement and offer consent orders to the Court, should be given some credit for reaching that agreement.  They, in the end result know their children better than anyone else.  They know more about the other parent than the Court is likely to know and they, more than anyone else, love their children and want the best for them.  It is appropriate, where there has been as there has in this case, a history of family violence, for the Court to be cautious in making final orders without dealing with those issues.  In that regard, the only evidence before the Court at this stage is that the father has engaged in a therapeutic relationship with the psychologist and is maintaining that therapy.  Sadly, the current position in relation to his progression with a better understanding of his issues is not available to the Court as his psychologist’s affidavit before the Court presently contains a report that is now nearly two years old.  There does not appear however to be, on the face any evidence, since the conviction in May 2015 for breaches of the domestic violence order any evidence of other antisocial behaviour before the Court.  I take into account in making these consent orders the existence of the current intervention order and the history of family violence which I think has been established, some of which the father acknowledges and some which he did not.

7. In making these orders I also take into account the evidence of the mother’s therapist, Dr K. On the face of the evidence of Dr K, the Court may have had some concerns about the mother’s capacity to support the Orders which she now asks the Court to make.  That is because Dr K in her report makes it clear that having accepted a diagnosis of the mother of PTSD and anxiety, that the mother’s parenting of these two little boys might be compromised if she was required to have contact with, or in fact support, the children maintaining some form of relationship with their father. In those circumstances, though it is appropriate to give credit to the mother who notwithstanding that psychological profile that she has found in her heart and in her mind the capacity to support the children having an ongoing opportunity to maintain a relationship with their biological father.  It is to be hoped that, the very structured way in which time will occur over the next four years will provide sufficient opportunity for these growing boys to develop their relationship with their father, although it is limited time, but also for the mother to feel some confidence that the children may be able to move into some other form of time with the father, in the future, which will be in their best interests and safe.

8. That there is a prospect that that will occur, for the boys perspective, is in my view at least available when one sees the way that they presented when seeing the father at the two family report interview opportunities - one with Ms J in 2016 and one more recently with Ms E in August 2018.  Also what seemed to be initially at least some positives from the visits outlined in a report of Ms L.  In making that less than totally confident prediction that we can reunite the father and the boys I am conscious that they have had now no time for it seems over 18 months and that the most recent assessment by Ms H is that the children’s fear of their father has not diminished with the lack of time.  Some of the aspects of their relationship with their father will require much time and effort to be made to repair.

9. The Orders that I am asked to make are quite restricted in respect of the amount of time the father will have with the Children over the next almost five years.  In my view they are appropriate in the best interests of these children at this stage.  However, even these limited prescribed orders would be doomed to fail if the mother, who is a good and capable mother and attuned to her young children’s emotions, is not able to genuinely support the children exploring this relationship with their father.  The children draw their strength and their identity at this stage from their mother and although the father at least gives the impression in some of his material and perhaps his past words that he believes the mother has in some way alienated the children from him, I do not make any such finding.

10. What is important is that the mother, having signed these Orders, which I find are in the circumstances in the children’s best interests, that she supports the orders and encourages the children to enjoy their time with their father.  History is littered with cases and examples where children feeling they have been denied something they think is important to them, turn on a parent who they regard was the denier of that time, sometimes quite unfairly.  I am fond of saying that children usually work out eventually that their parents make mistakes.  Parents are not perfect.  These little boys have other suitable role models of a male nature in their life but their father is their biological father and could be, if his behaviour has modified, a very important lifelong support to them.

11. I make the orders in the hope that it will provide a graduated opportunity for these children to build an understanding of their father; to allow the mother to adjust to the inevitability that if the father persists, he will continue to be a feature in their children’s lives and for the father to have the opportunity to demonstrate that past occasions where his impulse control has been found to be lacking are in fact things of the past and he can focus on the best interests of his children.

12. If all those things occur, then these orders are sustainable and they need to be because as the Family Law Act1975 sets out, I should be making orders which are least likely to lead to further proceedings.

13. For the reasons for which I have given, I make the Orders which will appear once they have been sent to me at the beginning of these reasons which will include the undertaking which will become Annexure A to those orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 15 October 2018.

Associate: 

Date:  18 December 2018