Raines & Buchanan & Ors
[2010] FMCAfam 480
•25 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAINES & BUCHANAN & ORS | [2010] FMCAfam 480 |
| FAMILY LAW – Interim arrangements for parenting of child aged 8 – child lives with maternal grandparents in Adelaide – mother lives in Melbourne – father lives in Queensland – father has not spent time with child for many years due to his incarceration – whether appropriate to reintroduce child to father and if so, in what setting – maternal grandparents mistrust mother and father – mother has visited child in Adelaide – mother seeks time with child at her home in Melbourne – should child be independently represented – family assessment report ordered – best interests. |
| Applicant: | MR RAINES |
| First Respondent: | MS T BUCHANAN |
| Second Respondent: | MR BUCHANAN |
| Third Respondent: | MS L BUCHANAN |
| File Number: | MLC 6939 of 2008 |
| Judgment of: | Brown FM |
| Hearing date: | 25 March 2010 |
| Date of Last Submission: | 25 March 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 25 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lethlean |
| Solicitors for the Applicant: | Law 554 |
| Counsel for the Respondent: | Ms Jenkinson |
| Solicitors for the 1st Respondent: | MacGregor Solicitors |
| Solicitors for the 2nd & 3rd Respondents: | Ann Josephson Lawyers |
| Counsel for the 2nd and 3rd Respondents: | Ms Lewis |
ORDERS
This matter be listed for final hearing before Federal Magistrate Brown in Adelaide on 8 November 2010 at 10.00am NOTING five (5) days hearing time have been allocated and will not be exceeded without leave of the Court.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X] born [in] 2001 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to
Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
By consent mother spend time with the child in Adelaide between 10 April 2010 and 19 April 2010 with the mother to collect and return the child from the maternal grandparents’ home at a time to be agreed between them and there to be no restriction on the mother being able to bring the child in to contact with her partner Mr W.
The maternal grandparents and father take all necessary steps to enrol at [H] Children’s Contact Centre in Adelaide to assess their mutual suitability to take part in the supervised contact program at the Centre.
Pending the suitability of the parties to take part in the supervised contact program the father spend time with the child on three occasions on specific dates to be allocated by the director of the Centre in the months of May, June and July 2010 subject to the suitability of those dates to father and maternal grandparents and subject to the following conditions:
(a)Each such visit take place at the expense of the father;
(b)Each such visit be supervised by the director of the Centre or his or her nominee;
(c)Each such visit be no more than two (2) hour in duration; and
(d)The father be restrained and an injunction issued restraining the father from discussing these proceedings with the child or raising any issue with the child to do with him (that is the child) potentially moving to live in Queensland.
The father be at liberty to write to child no more than once per month with the maternal grandparents to be at liberty to inspect the correspondence to ensure that its contents are suitable and not likely to upset or unsettle the child.
The father be restrained and an injunctions issued restraining him from sending presents to child other than on special occasions being the child’s birthday, Christmas and at Easter.
The maternal grandparents be at liberty to arrange suitable counselling for the child in consultation with the mother prior to the child undertaking the process of supervised time with his father envisaged by these orders.
Further consideration of the matter is adjourned to 1 July 2010 at 9:30am.
The parties be at liberty to relist the matter.
IT IS NOTED that publication of this judgment under the pseudonym Raines & Buchanan & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
MLC 6939 of 2008
| MR RAINES |
Applicant
And
| MS T BUCHANAN |
First Respondent
| MR BUCHANAN |
Second Respondent
| MS L BUCHANAN |
Third Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. It was ordered that the reasons be transcribed. These are those reasons.
The matter of Raines and Buchanan is listed before me this morning. It is a complicated matter which concerns some interim arrangements for the care of a young child, [X], who was born [in] 2001.
So [X] is a child who is about eight years and three months of age. Today, as I have foreshadowed, I am going to fix the matter for final hearing and, because of the complexity of it, I am allocating five days for the final hearing.
As the parties may appreciate, this is a busy court very often, and, regrettably, I do not have five clear days for some time in my calendar. As a result I am going to allocate 8 to 12 November 2010 as the time for the final hearing.
The question arises as to what arrangements should be made in the short term in respect of [X]. The parties to the proceedings are [X]'s father, Mr Raines. Mr Raines lives in Queensland. It is conceded by him that he has not had any form of relationship with [X] for a significant period of time, and for that reason, to all intents and purposes, he is largely a stranger to [X].
The other parties to the proceedings are [X]'s maternal grandparents, Mr and Ms L Buchanan. They live in Adelaide and have done for many years. The other party is [X]'s mother, Ms T Buchanan. She lives in Melbourne with her partner, Mr W.
Having given that brief summary, it provides an insight into the level of complexity in the matter. On a superficial level, the matter is complicated because obviously the three parties concerned each live in separate states.
Logistically, from my perspective, it is complicated because today
Mr and Mrs Buchanan are here with me in Adelaide with their barrister, Ms Lewis. Ms T Buchanan is in Melbourne with her solicitor, Ms Jenkinson, and they are appearing on the telephone. Finally,
Mr Raines' barrister, Mr Lethlean, is also in Melbourne and he is appearing by telephone from there.
That is not the end of the complexity in the matter. It is common ground that for the past few years [X] has lived with his maternal grandparents in Adelaide. The proceedings began in Melbourne, some time ago now, with an application brought by Mr Raines. Ultimately, the proceedings have been transferred to the court's registry here in Adelaide and all agree that Adelaide is the natural forum for the matter because it is where [X] lives.
As I was saying, there is a significant level of complexity about this matter. I think the other thing that strikes me about the matter is that there is little facility for the parties to agree on some plan to manage this matter and it falls to me to do the best I can today for [X].
I am, of course, concerned about the child being overloaded. As will be apparent to all concerned, it is not [X]'s doing or [X]'s fault that he is surrounded by such a tangled skein of complexity. I am not here to be fair to or to try to please the parents or to the grandparents I am here to, as best I can, in ‑ to be perfectly frank - very difficult circumstances - to create a timetable which I think is a reasonable one, and one that is likely to be in [X]'s best interests.
The Family Law Act is based on twin pillars. The first pillar, is that the court is required to consider the benefits that will come to a child of having a relationship with both of his or her parents. For obvious reasons, parents occupy a significant position in the Family Law Act.
The other pillar, is that I have to ensure that the child concerned is protected from harm. The harm that may come from being neglected or abused or exposed to family violence.
Whatever I do, I have to be satisfied that the outcome is likely to be the one that is in [X]'s best interests, and it seems to me that, at this stage, given the emphasis in the Family Law Act, I have to give some significant emphasis to how [X] can have some form of relationship with both his parents.
At an early stage in the proceedings, I ordered that a family report be prepared. The report was prepared by Dr W, who is a clinical psychologist. She has provided a lengthy report. She is also a person of considerable expertise in the particular area of children and familial dysfunction. She met each of the parties concerned and observed each of them with [X] in February of this year.
There is some controversy about how she came to see [X] with
Mr Raines. Mr Raines has not played a significant role in [X]'s life because, it is common ground, that he was imprisoned in Queensland for several years.
I have not been told, with any precision, what was the reason for his imprisonment, but it seems to have related to offences of dishonesty and fraud, and certainly it is Mr and Mrs Buchanan's position, that
Mr Raines is a manipulative person and a dishonest person and they do not trust him.
The strict remit of the report to Dr W was, as I recall, that she was to investigate means through which [X] could be reintroduced to his father. By necessary implication, she was to consider whether such a reintroduction would serve [X]’s best interests.
It is clear from reading Dr W's report, that after some discussion with [X], in which, on her account, that is Dr W's account, the child expressed some curiosity about his father, and after she had given him ([X]) an opportunity to see his father through a two‑way mirror, in
Dr W's professional judgment, it was appropriate for the two to come together and for Dr W to observe what occurred.
In her report, at paragraph 42, Dr W's impression was that [X] was comfortable and happy in Mr Raines' company. So, from Dr W's perspective, that re‑introduction went well. The grandparents and the mother have a different view of that and I will come to that in a moment.
Dr W was critical of many things that Mr Raines told her. Particularly, she thought that he lacked insight into the possible emotional consequences of him coming back into [X]'s life for [X] and the reality of his ‑ that is, Mr Raines' ‑ position that at some stage in the future it was a likely outcome that [X] would go and live with his father in Queensland.
I think she was concerned at the prospect of Mr Raines, perhaps, indicating such things to [X], who would not have the cognitive development to understand those issues, and might be upset by what
Dr W considered to be Mr Raines’ unrealistic expectations. I share those concerns.
It is also the position that Ms Buchanan ultimately wishes [X] to live with her and Mr W in Melbourne. Mr and Mrs Buchanan senior have some concerns about their daughter, and particularly about Mr W, whom they regard as an unfortunate influence in their daughter's life.
Dr W also thought that Ms Buchanan junior ‑ if I can use that description of her ‑ lacked insight into her previous parenting of [X], particularly that she had not been as reliable and as consistent a parent as Dr W would have wished, particularly in terms of changing her address and her living arrangements, and calling on her parents to assist her with [X] when she was giving through periodic crises in her life. But, notwithstanding these concerns, in the long term, Dr W considered that it was likely to be of benefit to [X] that he maintained his relationship with his mother.
The issues that arise at this stage can be briefly summarised as follows: What is the next step for [X] to spend with his father? What should happen in terms of [X]'s relationship with his mother, particularly, given the issues that have arisen regarding Mr and Mrs Buchanan senior's attitude to Mr W and their diffidence and reluctance to allow or consider the prospect of [X] going to spend some time in his mother's home in Melbourne?
It is, I think, the position of Ms Buchanan junior, and Mr Raines, that they feel that Mr and Mrs Buchanan senior are dogmatic and controlling, and for reasons to do with their own emotional security, are wishing to circumvent or diminish the prospects of [X] having a proper relationship with his parents.
Mr and Mrs Buchanan senior would not accept that. Rather they would characterise themselves as being concerned about [X], particularly not wanting to overburden him. They would categorise [X] as a vulnerable child, who has had a lot of instability in his life over the last three or four years.
As such, they urge caution on me before unnecessarily overburdening [X], both by him travelling to Melbourne to spend time with his mother, and also about a too hasty or ill‑considered introduction process between [X] and his father, given [X] does not know him and may be rendered anxious at the thought of his world being turned upside down.
As I indicated, I am going to set the matter for final hearing and I think this is clearly the sort of case where [X] needs to be independently represented. That may serve a number of purposes.
Firstly, that independent person may gather material on behalf of [X], which the parties themselves may not wish to come forward. Secondly, he or she may act as an honest broker between the various parties concerned, and perhaps play the role of some form of project manager, in terms of the case, exchanging information and putting proposals. I think that would be a very useful thing.
Thirdly, and most importantly, such a person can be an advocate for [X] and, if appropriate ‑ and I leave it to the judgment of the independent lawyer concerned ‑ he or she may seek to consult with [X] and advise him of what is to happen and provide an objective and independent viewpoint on that.
In her report, Dr W investigated what Ms Buchanan told her - that’s
Ms Buchanan junior - that she was considering moving to Adelaide. Dr W thought that was almost certainly the best option for [X] and, in that likelihood, she recommended that [X] spend regular periods of weekend time and school holiday time with his mother.
It is clear, I think, that that is not going to happen in the short to medium term. Up until this stage, Ms Buchanan junior has travelled regularly to spend time with [X] at her parents’ home. As I say, Mr and Mrs Buchanan think Mr W is not a good influence on their daughter.
It seems to be the case that Mr W has been involved in proceedings of his own in this Court or the Family Court regarding arrangements for his own children and he, I think, submitted, and certainly it was put to Dr W - that the court had no qualms about Mr W interacting with his own children and, therefore, by extension, I should not have any qualms about Mr W interacting with [X].
At this stage, there will be some consensual extension in terms of
Ms Buchanan’s interaction with [X], as it has been agreed that she can come and spend time with [X] in Adelaide between 10 and 19 April. She will not stay with her parents.
The mother will provide her own accommodation and Mr W will come with her and certainly this is in line with Dr W’s recommendation that Mr W and [X] need to get used to spending time with one another, in what Dr W describes as a comfortable and familiar environment.
Dr W, in her report, at paragraph 59, goes on to opine that [X] could then travel to Melbourne for contact thereafter, with the grandparents and Ms Buchanan sharing the costs of this travel. On that basis,
Ms Jenkinson, Ms Buchanan’s lawyer, seeks that I make an order that there be a weekend period of time between [X] and his mother in Melbourne.
Mr and Mrs Buchanan senior are opposed to that. It is, I think, the flavour of Ms Lewis’ case that that is premature, and certainly it is not something that her clients have had an opportunity to think about in any great detail.
A more complicated issue involves what should happen between
Mr Raines and [X]. In her report, Dr W, recommended as follows:
It is also recommended that [X] begins spending time with his father at a contact centre in Adelaide, with Mr Raines travelling to Adelaide [every] fourth weekend whereby he could spend time with [X] for two hours on both the Saturday and Sunday at a time that is suitable to the centre for a period of three contact visit weekends, with the contact centre then being used as a transition point whereby Mr Raines could collect [X] from the contact centre at 10am on both Saturday and Sunday and return him to centre at 5pm for a period of another three contact visits/weekends.
It is the grandparents’ position that this is premature and it is their evidence that [X] has been upset by what happened after his meeting with his father which, apart from Dr W telling him this was possibility, quite clearly [X] had not been forewarned about.
Mr Buchanan senior deposes that since [X] saw his father, his behaviour has changed. He deposes that [X] has regressed to the level of behaviour he exhibited when he first came to live with his grandparents. He is fearful, allegedly, refusing to go to the end of the house on his own and he will not, allegedly, go into the yard to play on his own, whereas, previously, he was more outgoing, played on his bike and would hit a tennis ball against the wall. It is also deposed that [X] has wet his bed, something that has not occurred for very many years and [X] has expressed some disquiet about his father.
One of the complicating factors in this matter, which is alluded to in
Dr W's report, is that there is a significant age gap between
Ms Buchanan junior and Mr Raines. There is also a complexity about their relationship together, which Ms Buchanan junior has deposed to and from the mother’s account, it is said that this was an exploitative relationship.
As Ms Jenkinson has told me, one issue about which her client and the grandparents agree is that [X] has not travelled well, psychologically, following meeting his father and that is of concern to her.
Mr Raines’ position, expressed through his counsel, is that the court needs to take on board what Dr W has recommended and that there will never be a completely appropriate time to move forward with some time between his client and [X]. Certainly it is the tenor of
Mr Lethlean’s submissions that, if the grandparents are left to be the gatekeepers, in the sense of they should determine when the appropriate time will be, then it will never come.
With the greatest respect to Mr and Mrs Buchanan senior, I think there is some merit in that submission. I, obviously, cannot dismiss what they say about [X]. Clearly they are the people who are best placed to gauge how he is travelling emotionally.
But it was of some note, I think, to Dr W and so to me that Dr W reported that [X] had some curiosity about his father. In my estimation, she certainly did not thrust him unwillingly into his father’s company. It does seem that she gave him the opportunity to withdraw from the process she initiated.
As I have said earlier, there must necessarily be some experimental basis about very many orders I make in this court. As I have said, I have to consider how [X] can benefit from having a relationship with his father.
In this particular case I must bear in mind the objects and principles of the Family Law Act, which are contained in section 60B. They include the following – children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together. [X] also has an entitlement to be psychologically safe and secure.
The circumstances of [X]’s life are idiosyncratic and unusual, but I have to remember that [X] has a right to know his father. He also has a right to spend time with him on a regular basis. Of course, that right is subject to the condition that [X] also has a right to be safe.
It must be daunting for a child of [X]’s age to be confronted with this situation of having to engage with a person whom he does not know, in circumstances which are replete with high levels of emotion.
It is a part of the grandparents' case that Mr Raines is overly enthusiastic and, as such, unrealistic about his current position as a parent seeking to connect and is placing the child under a great deal of stress because of communications that are emotional and presents that are being sent by him to [X]. I take those matters on board and I do not dismiss them. But at this stage I have to consider what are the appropriate orders in the context of the matter being fixed for final hearing.
The final hearing will be in November, which is eight or nine months away. I want that final hearing to be as useful a hearing as possible. As a consequence of that I think, at this stage, bearing in mind Dr W's recommendation, it is apposite that I consider some brief time between [X] and his father in a very rigorously supervised setting.
It may also be the case that the independent children's lawyer will have time to brief [X] about the visit, if he or she feels it is appropriate. It may also be appropriate for [X], himself, to have some other form of therapeutic and supportive intervention. Certainly Ms Buchanan supports such a thing, but, as I say, I think there will never be a perfect time to move the matter forward so far as Mr Raines and the grandparents are concerned.
Necessarily, Mr Raines will want to move at a faster pace than the grandparents will want to move at and it will fall to someone in my position to arbitrate that matter, bearing in mind, of course, that I have to hold [X]'s best interests paramount after, considering all the matters in the Family Law Act.
I place significant weight on the benefits, in the short and longer term, that is that [X] is likely to derive from at least knowing who his father is, being able to place an identity on his father. In the longer term, this may assist [X] to further develop his own sense of identity.
What will happen after that, I am not sure, but I think the time is appropriate and it is likely to be in [X]'s best interests for there to be as much information and evidence available to me as possible for the final hearing, and also for the independent children's lawyer to be able to form a view about what is likely to be in [X]'s best interests that I should consider and give some credence to what Dr W recommends.
I will not, I think, advance the matter as quickly as Dr W recommends, given the concerns the grandparents have raised. Necessarily, there will be a waiting time before the parties can access the Children's Contact Centre in [H].
Mr Raines will have to travel from Queensland. He will only be able to come once per month ‑ that will be an expensive exercise ‑ and I have to bear in mind, I suppose, the pragmatic concerns.
So, I have come to the view that I should make orders which will enable [X] to spend monthly periods of time with the father, in a rigorously supervised setting, with the supervisor concerned to report back to the court as to what has occurred.
The other issue is what should happen in regards to some visits between the mother and [X] in Melbourne and, at this juncture, I think it would be unwise and imprudent of me to consider such a visit at this stage until I have some input from the independent children's lawyer.
So, I am going to take a cautious and incremental approach to this matter. It will not be as cautious and incremental as the grandparents would want. It will not be as fast and as expansive as Mr Raines would want, or Ms Buchanan would want, but for those reasons, at this stage, I am going to make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 25 March 2010
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