Partos and Partos

FAMILY COURT OF AUSTRALIA

PARTOS & MERRITT

[2008] FamCA 585

FAMILY LAW – CHILDREN – with whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT:

Mr Partos

RESPONDENT:

Ms Merritt

FILE NUMBER:

BRC

1985

2007

DATE DELIVERED:

16 July 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

16 July 2008

REPRESENTATION

APPLICANT:

Applicant appeared on his own behalf

RESPONDENT:

Respondent appeared on her own behalf

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Vachon

Christine Vachon Solicitors

Orders

IT IS ORDERED THAT:

The application for parenting orders be adjourned to 9.00 am on 29^th July 2008 before the Magellan Registrar for the issue of a trial notice;
The Independent Children's Lawyer have leave to issue a subpoena to the Department of Child Safety;
The FATHER have leave to withdraw his Contravention Application filed on 28^th May 2008;

IT IS ORDERED UNTIL FURTHER ORDER THAT:

The child, … born … May 2006, spend time with the FATHER at all such times as might be agreed between the parties or otherwise:
(a)in week one and in alternate weeks thereafter on a Saturday or a Sunday (or such other day as might be agreed) at the Logan West Contact Centre for such times to a maximum of six (6) hours as the Contact Centre can reasonably accommodate consistent with the child’s reasonable routine including, in particular, any routine sleep which the child has;
(b) in week two and in alternate weeks thereafter on a Saturday or a Sunday at the Sunshine Coast Contact Centre for such times to a maximum of six (6) hours as the Contact Centre can reasonably accommodate consistent with the child’s reasonable routine including, in particular, any routine sleep which the child has;
The parties do all such things and comply with all reasonable requests of either Contact Centre to facilitate the time set out paragraphs 4(a) and (b) of these orders occurring;

IT IS FURTHER ORDERED THAT:

Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of persons who may assist parties adjust to and comply with these orders are set out in the attached Fact Sheet and these particulars are included in these orders;

IT IS NOTED THAT:

This matter has been on foot for some time in both the Federal Magistrates Court and the Family Court of Australia and the earliest possible trial date should be allocated to it.

IT IS NOTED that publication of this judgment under the pseudonym Partos & Merritt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1985 of 2007

MR PARTOS

Applicant

And

MS MERRITT

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I will make formal orders then, Mr Partos. The effect of the orders I am about to make are that on 29 July at 9 o'clock in the morning you will appear before Registrar Turner who is sitting beside me today. The purpose of that appearance is to essentially try and deal with all of the procedural matters necessary to get the matter ready for trial.
I will give you leave to withdraw the contravention application filed on 28 May 2008.
I now proceed to deal with the application for interim parenting orders. In this matter, which arises on the Magellan directions list, I earlier made orders adjourning the matter to the Magellan Registrar for the issue of a trial notice.
Although specific trial dates cannot be guaranteed, it is highly likely that the trial of this action will take place in November and, hopefully, in early November this year.
This matter has an unfortunate history. The initial application was filed on 21 July 2006.
The matter arises in this list primarily as a result of a notice of abuse filed almost two years later on 8 May 2008. That notice of abuse alleges sexual behaviour in that the father has hurt the child's penis.
There have been earlier reports prepared, including in April 2007 by Ms L. There have been investigations carried out by the Department of Child Safety and, most recently, a report has been prepared by a family consultant, Mr P.
The essence of the dispute that has not been able to be resolved between the parties before me is the form in which time between the child, who is tiny, having been born in May 2006, and his father should occur.
The father reluctantly accepts that, until such time as there is a trial of the action, (and whilst denying in every respect any form of inappropriate behaviour towards the child, whether sexual or otherwise), that, in that approximate four month period, time between he and the child needs to be supervised.
The issue for me is whether that supervised time can occur with various family members as supervisors. That course of action is opposed by the mother who accepts only supervision by a contact centre.
In the latter respect she tells me that she has made enquiries at the Logan West Contact Centre and also with the Relationships Australia Contact Centre.
She tells me that the Logan West Contact Centre has a much shorter waiting list than the Relationships Australia and also tells me that there is significant flexibility in the quantities of time and the days upon which that centre can supervise time.
The mother lives with the child in Brisbane's southern outskirts. The father resides on the Sunshine Coast. He has also made enquiries at the Sunshine Coast Contact Centre.
He tells me that the time facilitated by that centre is limited to two hours and can take place on Thursday, Friday, Saturday or Sunday.
The mother tells me that she works for J Organisation, but that her hours are flexible so that she can take care of the child full time and work from home.
At par 76 of Mr P’s report dated 26 June 2008, a paragraph to which the father specifically refers me, Mr P says:
I find there to be insufficient reason to think that [the child] is at risk of harm whilst in the care of his father. I do not believe that [the father] would consciously and deliberately harm [the child] as a way of aggravating [the mother]. If this was the only question at hand then I would, without hesitation, recommend the father not be required to continue to see [the child] under supervised conditions. The truth is, however, there are, in my opinion, a number of other factors in this matter that one way or another impact upon the prognosis of this case.
Mr P then goes on to discuss those other matters that he refers to in the passage just quoted. Ultimately, Mr P, as part of the recommendations in his report says this at par 89:
If the Court finds there is inadequate reasons to suggest [the father] poses an unacceptable risk to [the child], then I respectfully recommend the following proposal, that [the father] spends time with [the child] as per the current order but that the father's times with [the child] be only spent at the home of his sister (Ms […]) and that a family member (preferably either [his sister] or [the father’s] mother) accompany the father when he and [the child] leave [his sister’s] house. [The father’s sister] told me she's prepared to support this. If the Court feels [the father] poses an unacceptable risk to [the child] I propose that the father see him only under formal supervised conditions. I propose the changeover continue to occur at the [B] Office and Relationships Australia with arrangements to ensure the parties are not required to come into contact with the other.
The ultimate live-with arrangements for the child are very much in issue and, based on what the parties and Ms Vachon, who is the Independent Children's Lawyer, have told me today, is likely to be the subject of the trial which is contemplated by the orders earlier made.
What is clear from Mr P’s report is that the time posed by him, by way of recommendation, has a pre-condition to it, namely, a finding made by this Court as to the nature, extent and degree of unacceptable risk, if any.
Cases of this type, dealt with on a preliminary basis by way of interim application prior to a trial are, as I attempted to explain to the father during the course of discussion, subject to a significant restriction.
The Court is unable to make factual findings and it is those very factual findings that are essential to the ultimate decision that the Court has to make.
Accordingly, the Court must do the best it can balancing the various considerations involved but always keeping the best interests of a child as the foremost consideration.
In this case that is particularly acute because the child is barely two years of age. The harm alleged is significant.
As significant is the fact that Mr P’s report indicates what might be loosely called significant anxiety on the part of the mother.
It seems from a preliminary reading of Mr P’s report that it is that anxiety that may explain the apparent dissonance between what is said at par 76, which I have quoted, and the ultimate recommendation, or the ultimate part of the recommendation which I have quoted at par 89.
The father suggests, in my view correctly, that there are a number of advantages for the child if the supervised time between now and the trial was spent, as he suggests, using his family members as supervisors.
Not the least of those are that the child would have the opportunity, not only to see his father, but to see also members of his, (the child’s) extended family, and to spend that time in a home environment, experiencing the spontaneity implicit in such arrangements.
Contact centres involve, axiomatically, significant restrictions in all of those considerations.
Nevertheless, in this case, it seems to me on an interim basis with the restriction on the Court already alluded to and where a trial is, despite the lengthy history of this matter, relatively imminent, that the Court should err on the side of caution.
In those circumstances it seems to me that time between the father and the child should be supervised at a contact centre.
There are significant geographical issues in this case. The father lives on the Sunshine Coast, the mother and the child live in the south of Brisbane. Travel and inconvenience is involved for each of the parties as a result and, most importantly of all, travel and inconvenience will be experienced by the child. Nevertheless, it seems to me to be important to attempt to fashion orders that allow the child to see his father in the supervised environment which I have ordered as frequently as possible, but in a way which attempts to take account of the geographical and other issues to which I have referred.
ORDERS DELIVERED
Does everyone understand the nature of the orders? Week one, Logan Contact Centre up to a maximum of six hours or such time as they can accommodate and each alternate week thereafter. In the second week, the Sunshine Coast Contact Centre for the maximum time - I will say up to a maximum of six hours even though it seems that they can only accommodate two - that they are able to accommodate.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 30 July 2008

[2008] FamCA 585

16 July 2008

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