Norton v Landell (Consent Final Parenting Orders)

[2015] FamCA 96

FAMILY COURT OF AUSTRALIA

NORTON & LANDELL
(CONSENT FINAL PARENTING ORDERS) [2015] FamCA 96

FAMILY LAW – CHILDREN – With Whom a Child Lives – Orders – Where both parents and the Independent Children’s Lawyer consent to the making of final parenting orders – Where orders propose that the child lives with the mother – Where mother has some concerning behaviours including drug use and domestically violent behaviour either in the presence of or nearby the child – Where no evidence that the child has demonstrated any adverse effect from exposure to his mother’s behaviour.

FAMILY LAW – CHILDREN – With Whom a Child Spends Time – Orders – Best interests of the child – Where question of whether and if so, in what circumstances the father should be permitted to spend time with the child – Where father previously convicted of and jailed for sexual offences against a child who was a relative of the mother – Where acknowledged that the father poses a real risk of harm to other children, from which group the child of these proceedings could not logically be excluded – Where father is not seeking primary residence – Where necessary to assess the risk of harm which the father poses to the child and whether given the mitigatory measures included in the proposes consent orders, that risk is an unacceptable one or not – Where Court satisfied on the balance of probabilities that the mitigatory measures proposed are sufficient to ameliorate the risk of harm which the father would otherwise pose to the child to the point where such risk is acceptable – Where child would obtain a benefit from a relationship with his father – Where the child is a young adolescent – Where child’s wishes given considerable weight – Where  Court conscious that the proposed orders potentially see long and perhaps indefinite supervision of the father’s time – Where Court mindful of criticism of protracted supervision order but noted each case is to be decided on its own facts – Where admittedly unusual facts in this case – Where Court satisfied the Orders are in the best interests of the child.

FAMILY LAW – CHILDREN – Orders – Where proposed consent orders specifically contemplate that the order requiring the father’s time to be supervised may only be varied to include unsupervised time by subsequent order of the Court and not by a Parenting Plan – Where Court satisfied exceptional circumstances of this case justify such an order and that in its discretion, such order should be made.

Family Law Act 1975 (Cth) 60CC, 64D

Family Law Act 1975 (Cth) 60CC, 64D

APPLICANT: Ms Norton

RESPONDENT: Mr Landell

INDEPENDENT CHILDREN’S LAWYER: …

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: … 2015

JUDGMENT OF: Tree J

HEARING DATE: … 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Name of counsel suppressed

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER Name of law firm suppressed

Orders

1. All previous Orders be discharged.

2. The mother will have sole parental responsibility for the child X born … (“the child”).

1. The child will live with the mother, conditional upon the mother complying with the provisions of order 4 herein.

2. The mother is to:

   a.Attend at a drug and alcohol referral service within fourteen (14) days of the date of these Orders and continue to attend for treatment and therapy as recommended by the drug and alcohol referral service, noting that the mother agrees to attend on at least a fortnightly basis for a period of not less than six months.

   b.Attend at Relationships Australia within twenty eight (28) days of the date of this order for one on one therapeutic support and continue to attend as recommended by her therapist, noting that the mother agrees to attend on at least a monthly basis for a period of not less than six months.

   c.Within twelve months of the date of this order, attend at Relationships Australia and complete an anger management course.

   d.Within twelve months of the date of this order, attend at Relationships Australia and complete the … Course.

   e.Notify the ICL in writing of the dates of her initial appointments and the names and contact details of each service provider forthwith upon her making those arrangements set out in orders (a) to (d) above and in any event within twenty eight (28) days of the date of this order.

   f.Provide to the ICL within twelve (12) months of the date of this order, letters and/or certificates of completion from each service provider as to her compliance with order 3 (a) – (d) inclusive.

3. The father will spend time with the child supervised by Ms L at times and at such public locations as may be agreed between the parties, but failing agreement on the first and third Saturday of each month (and the fifth Saturday in the event that any month has five Saturdays)  from 10.00am to 2.00pm; at City Z Shopping Centre, the City Z Main Street, a sporting event or such other public location which is nominated by either parent and which is acceptable to the supervisor;

4. If Ms L is unable to supervise the father’s time with the child then contact will be supervised by an alternative supervisor to be agreed between the parties and failing agreement then the father’s time with the child will be supervised by the Z Contact Service at their premises on such days and for such times as the service is able to make available.

5. Changeovers will take place at an agreed location and failing agreement at the Z Contact Service on such days or times as they are able to accommodate changeovers, noting that the supervisor is to conduct the changeovers, and further noting that where the Z Contact Service conducts changeovers the father’s time with the child as set out in these orders will be varied to accommodate the Z Contact Service’s availability.

6. The father will be solely responsible for all costs of the contact supervisors including the fees of the Z Contact Service.

7. The father is permitted to communicate with the child by sending letters, gifts and cards to the child and the mother is to view all letters, gifts and cards before handing them on to the child.

10.The father will within twenty eight (28) days of a request from the mother do all acts and things and sign all documents as are necessary to have a passport for the child issued and the following provisions shall apply:

(a)   Should the father fail to sign the necessary forms within seven (7) days of a request in writing from the mother then, on the mother providing an affidavit as to her efforts to have the father sign the documents, a Registrar of the Family Court of Australia shall be authorised to sign such documents on the father’s behalf in accordance with section 106A of the Family Law Act 1975.

(b)  Both parents will be listed as emergency contacts on the child’s passport.

(c)  The mother will hold the passport for the child.

(d)  The mother may travel overseas with the child and/or arrange overseas travel for the child provided that, other than in the case of an emergency:

a.The mother provides the father with at least one (1) month’s written notice of the intention to travel.

b.Two weeks prior to departure the mother provides to the father:-

i.copies of the travel itinerary for the child; and

ii.contact details for the child during the period that he is away.

11.Within thirty (30) days of the date of this order the mother will do all acts and things and sign all documents necessary to arrange for the child to attend upon Mr R for therapeutic support and will continue to present the child for attendance as requested by Mr R in order to address:

a.Management of personal boundaries.

b.Monitoring and reporting if necessary of any concerns regarding his father’s behaviour.

c.To address the child’s self-protective skills and understanding of risk concerns.

12.The Independent Children's Lawyer is authorised to provide to Mr R and to the mother’s treating therapists a copy of the Family Reports dated 15 May and 18 September 2014.

13.In accordance with section 64D(2) of the Family Law Act 1975 Orders 5 and 6 above regarding the father spending supervised time with the child may only be varied to include unsupervised time by subsequent order of this Honourable Court and not by a parenting plan.

14.The Independent Children's Lawyer have liberty to apply.

15.The Independent Children's Lawyer be discharged 12 months from the date of this order.

16.In 12 months from the date of this order all outstanding applications stand dismissed and the matter be removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order the File Number is suppressed

Ms Norton

Applicant

And

Mr Landell

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These are my reasons for making final parenting orders with the consent of both parents and the Independent Children's Lawyer. 

2. The proceedings relate to the child of the parties, X (“the child”), who is a young adolescent.  The matter has a relatively complex background but in essence involves the question of whether, and if so in what circumstances, the father should be permitted to spend time with the child.  The reason why there is a serious question mark hanging over the father spending any time with the child is because in 2008 he was convicted of, and jailed for, sexual offences against a child committed between the years of 2003 and 2006, including maintaining a relationship with a child under the age of 16, indecently dealing with a child under the age of 16 and possession of child exploitation material.

3. Those charges, to which he pleaded guilty, are of course serious by themselves.  However, the child that was the subject of the relationship and the indecent dealing was a member of the extended maternal family, who at the time of the offences, was an adolescent, and was, during the time of those offences, either living with the parties pre-separation, or living with the father post‑separation. 

4. It will be appreciated that the gravamen of the offence in those circumstances is that the father was in a position of trust with the victim, and grossly abused that trust in the ways to which he ultimately pleaded guilty.  The fact of the father’s conviction and incarceration for those offences means that, inevitably, it has to be acknowledged that the father poses a risk of harm to other children, from which group his own son could not logically be excluded, notwithstanding the father’s protestations to the contrary.

5. Although it provides no justification for the father’s offending between 2003 and 2006, it appears as though it was associated with relatively heavy use of marijuana by him and, indeed the victim, at that time, which might go some way, but not very far, to shedding light on the circumstances in which he was prepared to abuse the trust which the victim had in him, for his own sexual gratification. 

6. The principal issue which this case gives rise to is gauging the magnitude of the risk which the father poses to the child, and more particularly, gauging the likely efficacy of any mitigatory measures which might be deployed to minimise that risk.

7. That said, that is not the sole issue which the consent orders give rise to, in that the mother herself has some concerning behaviours which appear, potentially at least, to have been manifest for some time.  These include her own use of drugs (she recently having tested positive to drugs present in her body as late as November last year), and also domestically violent behaviour, either in the presence of the child or, if not immediately in his presence, then certainly nearby him.

8. That said, the father does not seek to be the primary resident parent of the child, and there is no suggestion on the evidence, notwithstanding the mother’s behaviour, that the child has demonstrated any adverse effect from that or his exposure to it.  It has to be said that perhaps a part of the reason for the mother’s behaviour lies in her feelings of guilt and helplessness arising from the knowledge that her own family member was sexually abused by the father in the ways that I have detailed, whilst he was living with her, and her feelings that in some way she failed to adequately protect him.  Again, whilst one may use those as some explanation of the mother’s behaviour, the use of violence and drugs are, of themselves, clearly worrying.

9. I do not propose to traverse exhaustively the section 60CC factors.  Many are simply not engaged by the proposed consent orders.  Rather I identify that the substantial questions for my consideration in determining where the best interests of the child lie require me to firstly, assess the risk of harm which the father poses to him and consider whether given the mitigatory measures which the parties have included in their proposed consent orders, that risk is an unacceptable one or not.  The second matter is the benefit which the child would have from a more meaningful relationship with his father.  The third matter is the wishes which the child has expressed and the weight which they should be given in the context of a young adolescent boy without any other, it would appear, role model of a father type in his life.  I will deal with those considerations in that order. 

10. I have already identified that it must be acknowledged that the father poses a risk of harm to the child.  True it is that he has never, in the past, shown that that risk is one that is likely to manifest itself in harm to his son, but as I have said, in the context of him having abused the trust of a young boy who was living in his household, the risk is nonetheless a real one.  The parties, I think, in fairness to them, acknowledge that.  By the draft orders which they have provided for my consideration, they have adopted four mitigatory measures designed to minimise, and perhaps even wholly ameliorate, the risk which the father would otherwise pose.

11. The first is that the child will live with the mother.  The child clearly enjoys a good relationship with the mother, and no doubt the mother will be highly vigilant to protect the child from the risk of harm which the father might otherwise pose.  The second is that the parties propose that, at least for the foreseeable future under these orders, the father’s time with the child will only be supervised, in the first instance by his sister, Ms L, and in the event that she is unable to do so, and an alternative supervisor is unable to be agreed between the parties, then at the Z Contact Centre.  Ms L is the older sister of the father.  They come from a large family, and she impressed me as understanding the role, and the importance of the role, which she has offered to shoulder in supervising her brother. 

12. The third matter which mitigates the risk is that the father’s time with the child will only be supervised at public locations.  These are specified in the proposed orders as being the City Z Shopping Centre, the City Z Main Street, a sporting event, or such other public location which is nominated by the parent, and which is acceptable to the supervisor.  Finally, the fourth mitigatory measure which the orders contemplate is the provision of professional assistance from a psychologist to the child to enable his management of personal boundaries, the monitoring and reporting, if necessary, of any concerns regarding his father’s behaviour, and to address the child’s self-protective skills and understanding of risk concerns.  The particular psychologist to administer this therapy is Mr R, a psychologist well known to this Court. 

13. The question then becomes whether those mitigatory measures are sufficient to ameliorate the risk of harm which the father would otherwise pose to the child. 

14. I am satisfied, on the balance of probabilities, that they will indeed minimise the risk which the father would otherwise pose, to the point where it is acceptable.  It is difficult in the extreme to envisage a circumstance arising under that regime of orders in which any concerning behaviour would either not be immediately detected, or at least swiftly reported.  I am therefore satisfied that the risk of harm is sufficiently mitigated. 

15. Moreover, there is the undoubted benefit which the child will obtain from a more normalised relationship with his father than he has thus far had.  His father was incarcerated for two years;  he served two years of a four-year sentence.  During that time, as I understand the material, there was no face-to-face contact between the child and the father.  It appears as though there was some communication, principally in writing.  However, since his release on parole, the father has regularly spent time with the child at the Z Contact Centre. 

16. Save for one conversation, which appeared to transgress into an inquiry by the father of the son whether he had received certain correspondence from him, it appears as though the father’s conduct at the Contact Centre has been exemplary.  He appears to have a strong bond with the child, and vice versa.  The child obviously looks forward to seeing his father with anticipation and joy.  The child has a close connection with his father, and one of clear benefit to him. 

17. Moreover, particularly in relation to a young adolescent boy, the father-son relationship will become difficult to meaningfully maintain in the context of a Contact Centre.  The relationship is likely to better develop if the circumstances in which it is enjoyed are in a more normal environment.  Therefore, I am satisfied that the orders that the parties ask me to make will enable the child to better obtain benefit from a meaningful relationship with his father. 

18. The third relevant matter I have identified is the child’s wishes.  He is a young adolescent boy.  I give his wishes considerable weight.  He plainly wishes to see his father in a less clinical setting than the Contact Centre provides, and he himself nominated that he wished to see more of his father in more liberal circumstances.  In my view, that is a matter worthy of considerable weight, although of course it could not possibly displace any unacceptable risk of harm which the father might have otherwise posed to him. 

19. I am conscious that the proposed orders potentially would see long, and perhaps even indefinite, supervision of the father’s time.  Counsel for the independent children’s lawyer helpfully referred me to the Full Court decision of Slater & Light [2013] FamCAFC 4, where the Full Court expressed, it may be fairly said, considerable disapproval of regimes of orders which see protracted, or indefinite, supervision.  However, whilst I accept that I am bound by statements of law or general principle in Slater & Light, that does not mean that each case is not to be decided on its own facts.

20. The only safe alternative to supervision of the father’s time with the child would be to restrict the relationship to one of communication only, albeit accepting that modern forms of electronic communication may allow visual experience of the father, and vice versa.  However, I am satisfied, on the admittedly unusual facts of this case, that whatever may be the potential disadvantages of a long, or potentially long, period of supervision of the father’s time with the child, they are outweighed – and strongly outweighed – by the benefit with the child will derive from the relationship with his father which he will be able to enjoy, particularly given  that the supervision will now move to being less clinical in nature, in that is it being afforded by a family member, namely the child’s aunt. 

1. Although I am mindful of the criticism of protracted supervision orders, weighing all of the relevant considerations, I am satisfied that, nonetheless, such orders are in the best interests of the child in these circumstances. 

2. The final matter that I should advert to is that the proposed consent orders specifically contemplate that, in accordance with section 64D(2) of the Family Law Act, the order requiring the father’s time with the child to be supervised may only be varied to include unsupervised time by subsequent order of this Court, and not by a Parenting Plan. 

3. I am satisfied that there are exceptional circumstances in this case to justify such an order and, further, that in the exercise of my discretion, such an order should be made.  Particularly, I am satisfied that there is a need to protect the child from the prospect of harm, and that of itself is sufficient to require, in the public interest, that it be the Court, rather than the parties, that can only permit – if it is so persuaded – any change of the father’s time with the child from supervised to unsupervised.  That is a matter, in the circumstances of this case, that should rest solely with the Court. 

4. For those reasons, there will be orders accordingly. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on … 2015.

Associate: 

Date:  … 2015