Ritchie and Feakes - [2013] FMCAfam 299

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RITCHIE & FEAKES

[2013] FMCAfam 299

FAMILY LAW – Parenting – special needs child – supervision – what type of supervision needed and for how long.

Family Law Act 1975, Part VII

Goode & Goode (2006) FLC 93-286

Applicant:

MR RITCHIE

Respondent:

MS FEAKES

File Number:

SYC 5143 of 2008

Judgment of:

Altobelli FM

Hearing date:

22 March 2013

Date of Last Submission:

22 March

Delivered at:

Sydney

Delivered on:

28 March 2013

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the Respondent:

Respondent in Person

Solicitors for the Respondent:

Kathryn Renshall

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

All existing orders for the child X born (omitted) 2006 to spend time with her Father be discharged.
The Father is to spend time with the child as follows:
(a)Commencing on either Wednesday 3 April 2013 or Thursday 4 April 2013 as the Father may nominate, and continuing each fortnight thereafter for 2 hours as nominated by the Independent Children’s Lawyer having regard to the availability of a supervisor and the child’s sleep routine (if any);
(b)From the first contact visit in May 2013, and subject to the availability of a supervisor, the time shall increase to 3 hours each fortnight;
(c)If the Father’s time with the child pursuant to these Orders permit, the Father is to collect the child from her school accompanied by the supervisor, and either return her to the said school or to the Mother’s home on conclusion of his time, depending on whether school would have ended by that time;
(d)If the Father returns the child to her Mother’s home, he is not to approach the Mother’s front door but to request that the supervisor facilitate the child’s return;
(e)The Father is entitled to bring with him any other person during his time with the child;
(f)The Father is to ensure that all activities he engages in with the child are appropriate both having regard to her age, her developmental stage, and her medical condition as well, and he is to abide at all times with requests by the supervisor; and
(g)The Independent Children’s Lawyer is requested to nominate a person who is “special needs trained’ who the Father may then engage at his own expense as supervisor for the purposes of these Orders. The Independent Children’s Lawyer has leave to provide such information as she considers appropriate to enable that person to discharge her role as supervisor. The Independent Children’s Lawyer must advise and keep the Mother advised in relation to the supervisor.

THE COURT FURTHER ORDERS THAT:

The matter be set down for 2 day Final Hearing on 19 and 20 February 2014 at 10:00am.
Pursuant to section 62G(2) of the Family Law Act1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in s.60CC of the Act.
The parties send copies of all of their court documents to the family report writer within 3 days of being requested to do so by the family report writer.
The Family Reporter have regard to affidavits filed in the matter at the date of preparing the report.
I DIRECT the legal representatives for both parties or the parties themselves to confirm with the report writer no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
I DIRECT the Independent Children’s Lawyer to notify the Family Reporter of the hearing date and request the Family Reporter be available, if required by the parties, on the first morning of the hearing.
The matter be adjourned to 26 August 2013 at 2:00pm for possible Interim Hearing. If the Family Report is available, both parties are to attend with their legal representatives (if any).
Leave be granted to the Independent Children’s Lawyer to relist the matter on 7 days’ notice.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5143 of 2008

MR RITCHIE

Applicant

And

MS FEAKES

Respondent

REASONS FOR JUDGMENT

I provide the following oral reasons for judgment in the matter of Ritchie & Feakes. This case is about X who was born on (omitted) 2006. X is seven years old. Her father is the applicant, her mother the respondent. On the 1 April 2010 the parents entered into consent orders that provided for equal shared parental responsibility, for X to live with her mother and for there to be contact with her father. I will incorporate into these, my oral reasons, the orders for contact that were made, namely orders (8), orders (9) and also order (12).
Those orders were no doubt influenced by a family report which was prepared by a family consultant, Ms R dated 12 February 2010. X suffers from an atypical autism spectrum disorder, a neuro‑developmental disability that affects communication, social perception, interaction and some aspects of sensation, cognition and functioning. Amongst other things, this means in practical terms that she has a special diet and a routine. X has special needs. Her condition and its management and the impact of this on both parents is a major complexity in this case.
The case has been in my docket since late 2012. The father’s application originally dealt with schooling and resumption of contact. He had not seen X since June that year due to AVO proceedings. The matter has been back before me several times since November 2012 and on almost every occasion I have had to make interim orders of some sort. Both parents have been either represented or unrepresented at times – the father, mostly unrepresented; the mother mostly represented but currently unrepresented and X, of course, has her own solicitor.
The issue that came before me last Friday, 2 March, was how contact was to be progressed, at least pending the preparation of a family report. Both the father and the Independent Children’s Lawyer proposed unsupervised time, one hour per week increasing to two and subsequently three hours per week, with the father to have another person present but not in a formal supervisory capacity. The father, in fact, conceded that his preference was for one unsupervised contact each fortnight.
The mother proposed a one-hour visit per calendar month supervised either by her or her partner until such time as the father is prepared to pay for independent supervision by someone who is “special needs trained”.
There is some common ground in this case and there are also some strong impressions that can be formed from the evidence. Firstly, the mother and father cannot communicate. They have a deep distrust for each other and their capacity to cooperate is probably zero.
Nextly, the father said to me on the last occasion that he was close to simply giving up. Nextly, the mother is so overwhelmingly concerned and preoccupied about X’s special needs that her approach to this case has been extremely conservative and might even be mistaken as uncooperative but, she says, she finds it hard to ignore what she perceives to be the consistent advice of X’s treating experts who urge great caution about unsupervised time with the father.
Nextly, it would seem, indeed a strong impression formed from the objective evidence, is that the mother has had fallings out with at least the last supervisor. Nextly, it is possible, I recognise, that nothing in fact, can be done to address the mother’s concerns other than, perhaps, to ignore them. Ms E, counsel for the Independent Children’s Lawyer has described the mother as “more anxious than is necessary”. This is important because the mother’s case is that contact should remain supervised until the family report is obtained but the risk is that even then she would not accept the family consultant’s recommendations if they are contrary to her own belief systems. Lastly, by any objective of measure the recent history of supervised contact between the father and X demonstrates that X is coping well.
The applicable law is, of course, contained in Part VII of the Family Law Act and I will incorporate into these my oral reasons, some of the relevant provisions. The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides a template to approach these cases, as well as a discussion of the applicable law. I have or will make an order for a family report and this will be available in August and I note that it is likely that there will be a further interim hearing after this. After that there will be a final hearing in February 2014.
Ms E, on behalf of X, emphasises the father’s positive track record of contact with X, both supervised and unsupervised and the recent positive current history of supervised contact. She submits progression to unsupervised is called for, is in X’s best interests, and that if the father has another person present this is good but only because it reassures the mother and not because there is any need. Ms E submits that supervision is contraindicated because it is unnecessary on the evidence, it is very hard to arrange and, in any event, it is expensive.
In short, however, she submits there is no risk to X. She points out that the regime of contact is very conservative, namely starting at one and then progressing to two and three hours in accordance with her proposal. The father agrees with this but his further concern is that the mother is incapable of fostering X’s relationship with him as is manifested by her arbitrary decision to change X’s school and her disapproval of two previous supervisors. His contention is that so far as the mother is concerned, no one is good enough to care for X but herself.
The mother says that, in effect, the risk of unsupervised contact is too high. She says this is based on the consistent medical evidence that she has obtained. Moreover, she contends that the concerns expressed by family consultant Ms R in the first family report have not been addressed, especially the concerns about the father’s parenting capacity. The mother concedes that there has been supervised contact that appears to have gone well but submits that these very limited contacts are only a snapshot within which to assess the risk to X. The mother contends that X remains a very vulnerable little girl and that supervision should continue until the family report is available.
Whilst the Court understands the mother’s feelings and perceptions, especially that she feels that she cannot ignore the advice that she is getting from X’s doctors about the need for supervised contact when they are with her, the Court can place little weight on this. It is unreliable evidence, especially in the manner in which it is presented. The Court, for example, is unaware of the history given to the doctors about the issue that is presently before the Court. The mother can hardly be considered to be an objective historian of these events. The case cannot be decided by reference to what may well be partisan medical evidence which, in any event, is quite inconsistent with the more recent history of uneventful, unproblematic supervised time.
However, the mother’s reliance on the existing family report, even though it is three years old, does require much deeper consideration. One must, for example, look very carefully at paragraphs 60 to 80 of that family report and I will incorporate those paragraphs into these, my oral reasons. The single most prominent thing of these paragraphs can be summarised in one word – vulnerability. It is not just X’s vulnerability that is apparent from the family report but the mother’s own vulnerability as well. There is dependence between mother and child that is, of necessity, much greater due to X’s special needs. As the family consultant said, X is not a normal child so that which would be normal in terms of contact for any other seven year old simply does not apply here. It should be recognised, of course, that this is reflected in the very conservative proposals that have been advanced by the father and the Independent Children’s Lawyer.
The Court’s biggest concern in this regard is that the making of an order that the mother cannot emotionally accept and cope with, threatens her ability to meet the special needs that X has. The Court accepts, of course, that there is a risk that pandering to the mother’s concerns, if they are subjective without an objective basis, is hardly in X’s best interests. The Court accepts that there is a possibility that what the father contends is correct and that is that there is nothing that will ever satisfy her. But on balance, the Court at present feels that both the father and the Independent Children’s Lawyer may not be fully appreciating X’s vulnerability which is, in itself, inextricably linked to the mother’s vulnerabilities. The need for caution and conservatism must therefore continue in this period until the family report is obtained.
It is sobering to note the closing paragraph of exhibit ICL1 from 22 March. This is the final supervisor’s report from (omitted) and it is a report on the supervised contact that occurred on 6 March. There are some wise words here – and I will read it onto the record.
What (omitted) can report is that the session was uncomplicated and that there did not appear to be any concerns in the actual interaction between father and X while she was being supervised and while the grandmother was present. Decisions regarding X’s safety and the appropriateness of father/child interactions when unsupervised and out of this occasion of service rests with the Court and requires far more detailed assessment, observation and decision-making.
Pending the availability of the family report, the Court will order that contact continue to be supervised but it will be for increasingly longer periods. The father requests that it be fortnightly. So be it. The father requests that it be on either Wednesday or Thursday. So be it. The mother will have no say on who is to be the supervisor. The Independent Children’s Lawyer will have complete control in this regard. The only prerequisite will be that which the mother told the Court, that is the supervisor must be “special needs trained” and therefore, I infer, not necessarily an occupational therapist.
I will ask the Independent Children’s Lawyer who is clearly one of the most experienced Independent Children’s Lawyers in New South Wales, to proactively seek out potential supervisors who are special needs trained and who are affordable to the father.
I asked the Independent Children’s Lawyer not to rule out investigating whether there is someone who is special needs trained available at a supervised contact centre, family relationship centre or other community-based organisation. I rule out the mother’s supervising contact or even being present in the vicinity and this is due to the toxic nature of the parental relationship. If the father would like someone else to be present, that is his choice.
Before I make orders, I would like to make some comments directed to the mother and the father. To the father, I say, do not give up. Hang in there at least until the family report is released in a few month’s time. To the mother I say that, in all likelihood, the biggest problem that you will face at a final hearing is the father’s contention that despite what you say you are not committed to encouraging X’s relationship with him. If you want to manage this issue, you must cooperate, not just with the letter but with the spirit of the orders.
I am going to order a family report. I will set this matter down for final hearing.
I will vacate all existing orders for X to spend time with her father and I will make the following orders for the father to spend time with X.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date: 8 April 2013