Oaksley and Brownhill and Ors

[2007] FamCA 729

FAMILY COURT OF AUSTRALIA

OAKSLEY & BROWNHILL AND ORS [2007] FamCA 729

FAMILY LAW – CHILDREN – Interim Application - Where father applies to increase the amount of time he spends with child –It is agreed the father’s time with the child shall be supervised – The risks are in the upper range of seriousness - The degree of supervision required must be competent and vigilant - Where father nominates his mother and stepfather as potential supervisors – Where father’s mother and stepfather previously agreed to supervise – During supervised visit the child’s younger brother drowned in their backyard swimming pool – When child drowned he and the father were unsupervised – Father’s mother and stepfather are presently unsuitable supervisors – Father’s alternate proposals inconsistent with child’s need for security and emotional stability – Application dismissed

Family Law Act 1975 (Cth) s 60CC(3)(d)

Goode v Goode (2006) FLC 93-286
M v M (1998) 166 CLR

APPLICANT: MS OAKSLEY

FIRST RESPONDENT: MR BROWNHILL

SECOND AND THIRD RESPONDENTS: MRS D OAKSLEY AND MR B OAKSLEY

INTERVENOR: DEPARTMENT OF COMMUNITY SERVICES

FILE NUMBER: NCC 1091 of 2007

DATE DELIVERED: 23 July 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 26 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pudner-Hoy

SOLICITOR FOR THE APPLICANT: Mr Bateman

COUNSEL FOR THE RESPONDENT: Mr Bates

SOLICITOR ADVOCATE FOR THE INTERVENOR: Mr Crompton

INDEPENDENT CHILDREN'S LAWYER Ms Olsen

Orders

1. That Orders 7 and 8 of the Orders made on 7 February 2007 be discharged.

2. That the child J born in June 1998 spend time with the mother at the R Contact Centre, at B at times and for such time as is nominated by the Director of the R Contact Centre and supervised by the Director or nominee.

3. That the mother and/or the 3^rd Respondent have liberty to relist this matter on seven days notice to the Court and to the other parties, in relation to the operation of Order 2 herein.

4. That the mother and grandparents obey all reasonable directions of the Director of the R Contact Centre when at the Centre in compliance with Order 2 herein. 

5. That the mother forthwith contact the R Contact Centre and advise them of the making of this order.

6. That the 2^nd Respondent and 3^rd Respondent grandparents forthwith notify the R Contact Centre of the making of these orders and do acts and things necessary to be assessed by that Centre and if necessary, to have J assessed by that Centre in relation to the suitability for J to spend time at the Centre with his mother.

7. That the 2^nd and 3^rd Respondent grandparents cause J to be delivered to the R Contact Centre at least 20 minutes prior to the designated time for J to spend time at the Centre with his mother and collect J from that place at the conclusion of the time J is to spend with his mother.

8. That the Department of Community Services and the Independent Children’s Lawyer confer from time to time with the Director of the R Centre concerning the mother’s visits with J and in this regard the Court requests that the Director reports informally on those meetings.

9. That the Independent Children’s Lawyer shall provide copies of Exhibit ‘D’ and the two Family Reports prepared by Ms L to the Director of R.

10. That the father have leave to make an oral application for interim orders in accordance with the Minute of Order marked Exhibit ‘A’.

11. That the father’s oral application for J to spend additional time with him and for the paternal grandparents to spend time with J is dismissed.

FAMILY COURT OF AUSTRALIA AT  

FILE NUMBER:

MS OAKSLEY

Applicant

And

MR BROWNHILL

First Respondent

And

MS D OAKSLEY & MR B OAKSLEY

Second and Third Respondents

And

DEPARTMENT OF COMMUNITY SERVICES

Intervenor

REASONS FOR JUDGMENT

1. These Reasons were delivered orally.

2. This is an application by the father to vary interim parenting orders concerning his son J, born in June 1998.  This is the fifth interim hearing concerning the child.  This number of hearings is itself evidence of the complex circumstances in which J’s parents Ms Oaksley and Mr Brownhill have embroiled him.  After a tumultuous and drug-fuelled relationship, J's parents separated for the last time in August 2006.  Unlike earlier separations, on this occasion, J and his younger brother, S, remained with their father. The father left N and moved with the children to his mother and stepfather's home at W. 

3. By interim orders made on 16 November 2006, Federal Magistrate Coakes placed the children into the Mr and Mrs Oaksley’s care.  Mr and Mrs Oaksley are the children’s maternal grandparents' with whom they have previously resided.  The parents were able to spend time with the children under strictly controlled conditions. Coakes FM ordered that the father spends time with J each alternate weekend from 4.30 pm Friday to 2.30 pm Sunday and on each intervening Saturday from 9.30 am until 4.30 pm.

4. By order 20 of these orders the father’s time with J and S was to be spent in his mother or stepfather's presence.  The father was then and still is living with his mother and stepfather. 

5. In accordance with the interim orders, on 19 January 2007 the maternal grandparents delivered the children to the paternal grandmother and step-grandfather for a weekend with their father.  On Saturday … January 2007, S drowned in the paternal grandparents' backyard swimming pool.  As the paternal grandmother’s, step-grandfather’s and the father’s affidavits reveal when this terrible accident occurred: 

   ·the paternal grandmother did not know where S was;

   ·the paternal step-grandfather did not know where S was;

   ·the father did not know where S was;

   ·the father and J were alone in a bedroom; and

   ·the paternal grandparents were elsewhere in their house.

6. It follows that although Coakes FM had ordered the father’s time with the children occur in the presence of either the paternal grandmother or paternal step-grandfather, the father, his mother and stepfather, at least on this occasion, failed to abide these restrictions.  There is no explanation in the father’s, his mother's or stepfather's affidavits which explains why there was such a serious departure from the orders.  It goes without saying that had the orders been complied with this accident would have been averted.

7. It appears that J returned to his maternal grandparents on … January 2007.  The father saw J at S's funeral in January 2007 and for a short time afterwards.  The paternal grandmother and paternal step-grandfather were also at S’s funeral.  They have not seen J since.

8. On 22 January 2007, Coakes FM suspended all orders whereby the father and thus his mother and stepfather saw or communicated with J. 

9. On 7 March 2007 Coakes FM discharged all prior orders for J to spend time or communicate with his parents.  It was ordered that both parents separately spend time with J for periods no longer than one hour in the Court's precinct, supervised by the Director of Child Dispute Services or her nominee.  As far as the mother is concerned this arrangement commenced immediately and for the father, after 8 March 2007.  These visits are reportable.  The Court has received two reports from the Director of Child Dispute Services, Ms L, who personally supervises J’s time with his parents.   As well as her two reports, Ms L gave brief oral evidence.

10. Ms L made the following recommendations. 

    That [the mother’s] time with [J] occur at the [R] Centre for 2 hours per fortnight.  If [the mother] remains well, psychologically, and continues to provide clear drug screens then consideration should be given to a gradually increasing programme of unsupervised, extended time for her with [J].

    That [the father’s] time with [J] continue to occur at the Child Dispute Services, under supervision, for one hour each fortnight until the Court considers the above issues and determines otherwise.  However, it should be noted that the Child Dispute Service is unable to provide long-term on-going supervision.

11. Ms L was cross-examined concerning her reports.  There was no meaningful challenge to the factual accuracy of the matters contained in the reports and her opinion warrants significant weight.

12. It is the father’s case that pending further order he should spend time with J for the same duration and on the same conditions as established by the 16 November 2006 orders.  Thus not only will the amount of time he spends with J dramatically increase, but as his mother or stepfather will once again supervise his time with J, J will have an opportunity to re-establish his relationships with them.  It is contended that this arrangement preserves meaningful relationships between J and his father and gives him the opportunity to maintain important relationships with his paternal grandmother and paternal step-grandfather with whom he has been significantly involved and who are keenly interested in his welfare.

13. The paternal grandmother and step-grandfather support the father's application.  The Independent Children's Lawyer, mother, maternal grandparents and the Department of Community Services do not.  All rely upon Ms L’s evidence which cautions again further significant changes to J's circumstances.  As all parties agreed that J's time with his mother will now shift to longer periods at a contact centre, Ms L says further change is contraindicated.  She emphasises that J has endured unsatisfactory parenting and he is a child with considerable vulnerabilities.

The governing law

1. In Goode v Goode (2006) FLC 93-286, the Full Court set out the applicable principles for determination of interim parenting applications. I particularly refer to paragraphs 65 and 82 of the judgment. Although no reference was made to the applicable law during submissions I discern that the parties consider that the pivotal provisions by which this case should be determined are predominately the two primary considerations and s 60CC(3)(d). With this I agree.

2. Because this case involves risk issues it is appropriate to mention M v M (1988) 166 CLR 69, that case being the touchstone for cases in which it is asserted there is an unacceptable risk to the child. The test is explained as requiring that a Court “not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of harm”. Applied to the facts in this case, this means I must weigh the risk of harm which it is agreed warrants supervision with the risk to J’s relationship with his father, paternal grandmother and paternal step-grandfather if the current restrictions are maintained. These risks must then be counterbalanced with the potential effect on J of further changes in his circumstances.

Determining the child’s best interests

1. The evidence relied upon in the father’s case establishes:

   (1)      that he has a long history of illicit drug use;

   (2)      he suffers from a schizo effective or schizophrenic illness;

   (3)his insight into his condition is reduced;

   (4)historically his compliance with recommended antipsychotic medication has been problematic;

   (5)when psychiatrically unwell he can be physically violent, including with family members; 

   (6)in the latter part of 2006, his mother arranged his involuntary admission to a hospital following threats of family violence; and

   (7)presently he is taking antipsychotic medication and is not using illegal drugs.

2. It was moderating the impact of these risk factors upon the children which prompted Coakes FM to restrict the father’s time with them and impose the requirement for his mother or stepfather's supervision.  It is clear that the risks as then existed and presently understood are in the upper range of seriousness.  It follows that the degree of supervision required must be competent and vigilant.  As the events of … January 2007 demonstrates the paternal grandmother and step-grandfather did not accept the federal magistrates risk assessment or abide by the trust he imposed in them to guard against it.  Even if they doubted the federal magistrate’s assessment, their obligation was to abide by his orders and ensure the children's safety.  They were not entitled to unilaterally disregard their supervisory obligations.  If they were unwilling to supervise, either they or the father were obligated to bring this to the federal magistrate’s attention.  Having regard to the events of … January 2007, I am not satisfied that the father’s mother or stepfather will presently bring to bear the necessary degree of supervision and vigilance which are presently required. 

3. Consequently I must consider the father’s alternate application that he spends time with J, supervised by Ms W.  Ms W has not met J and is unfamiliar with the circumstances of this case.  She has previously worked for the Court, although I gather from Ms L evidence that this was some time in the past.  I do no doubt that Ms W would bring her skills and appropriate level of vigilance to supervising the father’s time with J.  This invites the question of whether J would be comfortable in Ms W's care.  He does not know her which means that involving her in this critical role will require adjustment from J.  It appears he has learned to trust Ms L and may accordingly come to trust Ms W.  The transition may not however be easy for him.  J has already had a great deal to adjust to since his parents' separation.  J was present when S’s body was found and remained throughout the dramatic attempts made to revive his brother.  Over time more will be known about the effect witnessing this event and S’s death has had on this boy.  I accept the thrust of the father’s case that increasing the amount of time he has with J is likely to promote their relationship in a way which the present restrictions temper.  However, in the light of Ms L's evidence concerning the importance to J at this time of stability and security further changes of the type proposed by the father are inappropriate.  Simply put J is not ready for more change.  Further changes at this time may undermine his emotional stability at a time when this is critically important.

4. Ms L kindly offered to continue supervising the father’s time with J in the setting in which J is familiar and comfortable.  She has demonstrated in her reports an intimate understanding of the issues in this case.  In her supervision of J's time with his father, Ms L has seen signs that the father continues to be thought disordered, an observation which his psychiatrist Dr X also makes.  She has observed the father to be emotionally labile, an observation which

   
   

   Dr X makes.  The father discusses issues with J which J finds uncomfortable which discomfort the father is unable to appreciate.  With these occurrences it is preferable that Ms L, who seems to skilfully manage a difficult situation, continues to supervise the father’s time with J.

5. The father proposes that he communicates with J by telephone.  Telephone communication involves too great a risk of the father’s thought disorder confusing J.  Whatever ability the father has interpreting J's body language is more compromised when communicating by telephone.  I agree with the Independent Children's Lawyer that introducing telephone contact between J and his father is not presently in J's interests. 

6. In all of the circumstances, I am satisfied that pending further order, the existing arrangements for J to spend time with his father should be continued.

7. The father proposes that his mother and step-father participates in whatever time he spends with J, including if necessary, at court.  While J would probably welcome seeing them, potentially this detracts from the primary purpose of the visit, namely J spending time with his father.  While the father requires careful observation when with J including two additional adults may mean that the supervisor could find it difficult to oversee and supervise all interactions to the extent required.  In these circumstances the father’s mother and stepfather shall not be included in the father’s visits with J.

8. For these Reasons I make the orders identified at the start of this judgment. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  23 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as OAKSLEY & BROWNHILL