SACCO & BAGALA
[2011] FMCAfam 834
•17 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SACCO & BAGALA | [2011] FMCAfam 834 |
| FAMILY LAW – Children – parenting orders – where parties have consented to parenting orders in relation to all issues except two specific matters to do with one child – best interests of the child – meaningful relationship with both parents – supervision of child’s time with father – need to protect the child from physical or psychological harm. PRACTICE & PROCEDURE – Separate decision on question. |
| Family Law Act 1975, ss.60CA, 60CC, 62B, 65DA Federal Magistrates Court Rules 2001, R.17.02 |
| Applicant: | MR SACCO |
| Respondent: | MS BAGALA |
| File Number: | SYC 6603 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 – 22 July 2011 |
| Date of Last Submission: | 22 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell SC |
| Solicitors for the Applicant: | Broun Abrahams Burreket |
| Counsel for the Respondent: | Mr Maiden SC |
| Solicitors for the Respondent: | Byrnes & Cox Layers |
| Solicitor for the Independent Children’s Lawyer: | Robyn Sexton & Associates |
ORDERS
The Orders made by consent on 22 July 2011 are confirmed.
IT IS FURTHER ORDERED THAT;
The child [Z] born [in] 2000 is to spend time with the father for two (2) non-consecutive weeks during the Christmas school holiday period in each year as follows:
(a)From Christmas Eve 24 December 2011 until 31 December 2011;
(b)From Boxing Day 26 December 2012 until 2 January 2013;
(c)From Christmas Eve 24 December 2013 until 31 December 2013; and
(d)From 10 January to 17 January in each year.
During the times that the child [Z] is spending time with the father:
(a)The father must ensure that the child is provided with her own room; and
(b)From the date of these Orders until 17 January 2012 the father is to be accompanied by another adult during the periods he spends time with [Z], being any one of the following:
(i)Ms B;
(ii)Ms S;
(iii)Mr S;
(iv)Mr H;
(v)Mr C; or
(vi)Ms L.
Order (3) above is subject to the following conditions:
(a)The father must become a patient of a particular general medical practitioner and advise the Independent Children’s Lawyer of the name and address of that medical practitioner within One (1) month of the date of these Orders;
(b)The father must attend upon the said medical practitioner for a consultation about his state of health at intervals of no less than six (6) weeks between the date of these Orders and 17 January 2012 and provide evidence to the Independent Children’s Lawyer of each attendance within seven (7) days of such attendance.
IT IS NOTED that publication of this judgment under the pseudonym Sacco & Bagala is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6603 of 2008
| MR SACCO |
Applicant
And
| MS BAGALA |
Respondent
REASONS FOR JUDGMENT
Application
This is a decision about the parties’ daughter [Z]. The parties have entered into consent orders relating to most of the parenting matters in dispute about their children [Z] and [Y], but they have been unable to agree on certain issues regarding [Z].
The parties have been engaged in litigation about parenting and property matters, and they were unable to complete all of the evidence and submissions about property matters in the time available to them. However, they have resolved most of the parenting matters and it is in the best interests of the child to finalise the outstanding parenting matters, which are in a comparatively narrow compass.
The Court has the power under Rule 17.02 to make an order for the decision by the Court of a question separately from another question at any time in a proceeding.
Whilst it is unusual to do so, I am satisfied that this is a proper case to apply that Rule because:
a)It is in the best interests of the child concerned to finalise the parenting proceedings that concern her;
b)The outstanding parenting issues have a degree of urgency about them, as they concern the time that the child will spend with her father over the Christmas/January school holiday period and the length of the period that the father is required to have another adult with him when [Z] spends time with him; and
c)As an Independent Children’s Lawyer has been appointed, the finalisation of the parenting proceedings will obviate the need for the Independent Children’s Lawyer to remain involved in the litigation, thereby saving costs.
Issues
The issues to be decided between the parties are:
a)Whether the two non-consecutive weeks during the Christmas school holiday period in which the child will spend time with the father should include Christmas Eve and Christmas Day; and
b)Whilst the father has agreed that for a certain period of time following the making of these Orders he is to be accompanied by another adult during the periods he spends time with his daughter, the parties differ as to the length of that time:
i)The father submits that a period of three months is sufficient;
ii)The Independent Children’s Lawyer submits that a period of four months would be appropriate; and
iii)The mother prefers the view originally arrived at by the Independent Expert, Dr B, which that the period should be no less than twelve months. However, she would consider that a period of six months would be appropriate, if that were ordered.
Background
The parties were married [in] 1987 and separated on 10th August 2008.
There are four children of the marriage, two of whom are now adults.
[W] was born [in] 1991, so he has now attained the age of twenty years.
The parties’ elder daughter, [X], is also an adult. She was born [in] 1993, so she is now eighteen years of age.
The parties’ younger son, [Y], was born [in] 1996. He has just turned fifteen years of age.
The parties’ youngest child, [Z], was born [in] 2000. [Z] is eleven years and four months old.
The three older children appear to be estranged from their father at present. [W] and [X] have left home and are attending [universities omitted].
[Y] and [Z] live with their mother in the former matrimonial home.
The parties separated on 10th August 2008. There had been incidents of unfortunate behaviour prior to that time, especially whilst the family members were holidaying in New Zealand.
The parties separated after the father attempted to take his own life on 10th August. It is his evidence that the mother had told him a few days before that she wished to end the marriage. On the night of the 10th August, the mother was in Sydney and the four children were all at home with the father. There was, on the father’s evidence, a fight between [Z] and [Y] which led to [X] and [Z] leaving the house and staying at the home of the father’s brother in law for the night. [W] and [Y] remained in the home.
The father deposed that he received a telephone call from the mother in which she confirmed that she regarded the marriage as at an end. Later that night he attempted to take his own life by taking a variety of prescription medications. He was taken to [omitted] Hospital and later booked himself into the [omitted] Clinic in Sydney. He was subsequently diagnosed as suffering from depression.
The parties never resumed cohabitation.
The father commenced property and parenting proceedings in the Family Court on 10th November 2008. An order was made appointing an Independent Children’s Lawyer. The proceedings were transferred to this Court on 13th May 2010.
On 15th March 2011, the parties entered into interim consent orders, providing that (relevantly):
2. [Z] shall spend time with the father as follows:
(i) for one weekend in April, May and June 2011 with the mother to book and pay for the flight form [P] to Sydney such that [Z] arrives in Sydney by 11am on the Saturday and the father to book and pay for the flight from Sydney to [P] such that [Z] returns to [P] by 6pm on the Sunday.
(ii) for a period of six hours in [P] on one Saturday or Sunday in March 2011 as agreed but failing agreement
27 March 2011.
3. During such “time spent” periods
(i) the father is to be accompanied by another adult during all times he spends with [Z]
(ii) the father is not to be present when [Z] bathes or showers
(iii) the father not be present when [Z] dresses or undresses
(iv) that [Z] be provided with her own room
(v) that the father always be clothed when in [Z]’s presence.
Dr B, a Clinical Psychologist, prepared a Single Expert Report for the purposes of the parenting proceedings.
The Court heard evidence from the parties over a period of three days in July. During that time, the parties were able to negotiate an agreement on most of the parenting matters relating to the children [Y] and [Z], and on 22nd July 2011 I made orders by consent covering those issues.
Those orders provided:
1. That the children of the marriage [Y] born [in] 1996 (“[Y]”) and [Z] born [in] 2000 (“[Z]”) live with the mother.
2. That the father is at liberty to communicate with [Y] by letter or card (or both) to be conveyed by Australia Post to the mother’s home address on 2 occasions in each calendar year coinciding with [Y]’s birthday and Christmas, commencing with [Y]’s next birthday and such correspondence may include a present for [Y].
3. That commencing from the date of these orders [Z] spend time with the father as follows:
3.1 (a) On two weekends during each school term on dates to be agreed between the parties and subject to the mother before the end of week 1 of each term proposing the dates of at least two weekends that would be suitable for [Z] for that term and in default of agreement on the fourth and seventh weekends of each school term, respectively, with the mother to book and pay for the flight from [P] to Sydney such that [Z] arrives in Sydney by 8pm on the Friday and the father to book and pay for the flight from Sydney to [P] such that [Z] returns to [P] by 6pm on the Sunday;
(b) For a period of six hours in [P] on one Saturday or Sunday in each school term (but not to coincide with the Mother’s birthday or Mother’s Day) on a date and at times to be agreed between the parties before the end of week 2 of each term.
3.2 For one half of the end of Term 1, 2 and 3 School holiday periods each year on dates to be agreed between the parties not less than 28 days before the start of the respective school holiday period or failing agreement from 1pm on the first Sunday after the last day of [Z]’s school term until 1pm on the following Sunday, this Order to commence in respect of the end of Term 3, 2011 school holiday period.
4. That [Z] communicate by telephone with the father as follows:
4.1 For the period of 3 months following the date of these orders telephone communication between [Z] and the father be such communication as is initiated by [Z] to the father. Thereafter telephone communication between [Z] and the father may be initiated by either the father or [Z];
4.2 The mother is to allow [Z] to telephone the father from the mother’s home phone at any and all reasonable times on weekends and during the school holidays and at any reasonable times after school on a school day;
4.3 As may otherwise be agreed between the parties from time to time.
5. That except as may otherwise be agreed between the parties the travel and transport arrangements in respect of [Z] spending time with the father pursuant to orders 3.1(a), 3.2 and 3.3[1] above shall be as follows:
[1] There is no Order 3.3. The original Order 3.3 was excised from the Proposed Minutes of consent orders
5.1 [Z] shall travel by airplane between [P] and Sydney as an unaccompanied minor;
5.2 That in respect of orders 3.2 and 3.3 the mother is to book and pay for the flight from [P] to Sydney and the father to book and pay for the flight from Sydney to [P].
6. The father and mother shall each notify the other of any change in his or her address at least 14 days before any such change and also of any change in his or her telephone contact details (both landline and mobile) without delay.
7. That in relation to [Z] the father shall be at liberty to attend all school events and activities including but not limited to parent/teacher meetings, school concerts, dancing, sporting and any other extra-curricular events to which parents are invited or able to attend.
8. That each parent contact the other parent by telephone as soon as practicable in the vent of [Z] having a serious injury or hospitalisation while in his or her care.
9. That each of the father and the mother exercise parental responsibility in respect of separately liaising with [Y]’s and [Z]’s teachers from time to time and obtaining copies of each child’s school reports and other information published by the school for the parent community.
10. That the mother otherwise exercise sole parental responsibility in relation to [Y].
11. That the father and the mother exercise parental responsibility in relation to [Z] and consult with each other so as to reach agreement in relation to all decisions affecting [Z]’s long term care, welfare and development.
12. That each parent is restrained from using derogatory, offensive or other disparaging language about the other parent in the presence of the children or either of them.
13. That the father and the mother pay the costs of the Independent Children’s Representative (“ICL”) in equal shares being the standard composite costs paid by the Legal Aid Commission of NSW to the ICL.
14. That the father and the mother pay the further costs of Dr B associated with his preparation for and attendance to give evidence at the hearing in equal shares.
15. Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if either party contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the attachment to these orders and these particulars are included in these orders.
Notation
16. Each party acknowledges that [Y] is free to initiate telephone contact or other communication with his father, and to initiate an arrangement for the two of them spending time together (with or without [Z]) if [Y] wishes.
The Single Expert Report
In his report, Dr B noted that the father had been spending time with [Z] in accordance with the interim orders of 15th March. He noted the mother did not object to the father spending time with her but expressed a wish that another adult to be present as she had concerns about the father’s mental state. The father did not consider this to be necessary but agreed that he would adhere to the request until such time as the requirement could be removed.[2]
[2] Single Expert Report at paragraph [28]
Dr B interviewed [Z], both individually and in the presence of her mother. She referred to the family holiday in New Zealand as the time that her father “went mental” and said that she was scared by[3] his behaviour. She described other incidents about her father’s behaviour that distressed her.[4]
[3] Ibid at [66]
[4] Ibid at [67]
However, [Z] spoke positively about spending time with her father and reported a good relationship with her paternal grandparents and with the father’s friend, Ms B. Dr B noted a comfortable interaction between [Z] on the one hand and her father and Ms B on the other.
Dr B noted at paragraph 71 of his Report:
When asked whether she would like more or less visits with her father now, [Z] stated that she was “happy with how things are now”, visiting once a month. She agreed that she could visit more in the holidays.[5]
[5] Ibid at [71]
In his evaluation, Dr B stated that it was appropriate for [Z] to spend regular time with her father, but added this caution:
That being said, I too remain in support of the need for Mr Sacco to have additional supervision while caring for [Z] – at least for the next 12 months, though potentially longer. This recommendation is based on a number of reasons – Mr Sacco’s demonstrable lack of insight throughout as lengthy clinical assessment; [Z] re-counted episodes of Mr Sacco driving erratically with her in the car – to the pointy of running red lights; Mr Sacco’s suicide attempt was reportedly orchestrated in the family home while two of his children were present – [W] and [Y]. What it means is that Mr Sacco’s behaviour does not appear to be influenced by the presence of his children – to the contrary it is possible that he acted taking into account his children were there at the time. Presuming that reasoning holds, then I can only recommend that the Court maintains a most conservative approach to exposing [Z] to any further risk of harm issues from Mr Sacco, particularly as he states he is no longer under psychiatric review.[6]
[6] Single Expert Report at [88]
Dr B gave oral evidence. In cross-examination by the Independent Children’s Lawyer, Mr Lewis, Dr B said that he did not think that [Z] was at significant risk of harm in her father’s care but there were risk issues.
He said that [Z] was aged eleven years and two months old when interviewed. She is a bright, intelligent girl and the Court could place some weight on her views.
Dr B said that the type of supervision that he was considering was that the father’s new partner, Ms B, should be “on the scene” when [Z] was spending time with her father. He was not suggesting that there was a need for supervision by some agency, but the presence of the father’s new partner would be appropriate.
Dr B said in his evidence that he was prepared to reduce his recommendation of 12 months supervision to six months as there had already been a full three months when the child’s time with the father had been supervised by family members. He told Mr Maiden of senior counsel, who appeared for the mother, that he would have no objection to this supervision being conducted by Ms B, the parental grandparents or the father’s brothers and sisters.
In cross-examination by Mr Schonell of senior counsel for the father, Dr B said that he had taken into account the view expressed by Dr P, psychiatrist, that the father posed no threat to his children. However, he regarded it as significant that the father was no longer under psychiatric review, in that he had ceased seeing Dr N in March 2011,[7] and expressed the view that the father was not demonstrating much emotional growth.
[7] Single Expert Report at [45]
Mr Schonell asked Dr B about the father’s proposal that [Z] should spend time with him on alternate Christmas Days and Boxing Days in each year. Dr B’s reply was that for the couple of years it may not be so much of a concern but after that it may affect [Z]’s relationship with her siblings.
He reiterated that view in answer to a question from the Independent Children’s Lawyer.
The Parties’ Proposals
The father proposes that [Z] should spend time with him in addition to the times specified in the Consent Orders made on 22nd July 2011 as follows:
3.3 For 2 non-consecutive weeks during the Christmas school holiday period as follows:
(a) from Boxing Day 26 December 2011 until 2 January 2012 and thereafter in each alternate year;
(b) from Christmas Eve 24 December 2012 until 31 December 2012 and thereafter in each alternate year;
(c) from 10 January until 17 January in each year.
3.4 That during “spend time” periods;
(a) for a period of three months from the date of these Orders the father is to be accompanied by another adult during the periods he spends time with [Z]; such adult to be either Ms B, Ms S, Mr S, Mr C, Ms L;
(b) the father is to ensure that [Z] is provided with her own room.
The mother’s proposal is that, whilst she would prefer that the father’s time with [Z] be supervised for the next twelve months, she would consider a period of six months to be appropriate if it were ordered. The mother is also of the view that the father’s time with [Z] over Christmas should commence on Boxing Day in each year, so that the child could spend Christmas Day with her brothers and sister.
The Independent Children’s Lawyer proposes that a four month period of supervision would be appropriate. He also supports what he described as the mother’s “Boxing Day Option”, submitting that it would be in [Z]’s best interests for her time with her father to start on Boxing Day in each year.
Submissions
The father submits that the evidence identifies no risk of harm to [Z] in spending time with her father, based on the evidence of Dr B, the report of Dr P and the complete absence of any incident since April 2010. It was submitted that Dr B had made several errors in that:
a)
He could not remember whether he had seen the report from
Dr P;
b)He had undertaken the most superficial assessment of the father; and
c)He had forgotten that since April 2010 the father had been spending supervised time with [Z].
Counsel for the father submitted that [Z] should not be precluded from spending Christmas Day with her father. She has not done so since before 2008. The father recognises that in two or three years’ time she may not want to come and he is not asking for every Christmas Day. He submitted that the Court should put a limit on the arrangement and allow the child to spend Christmas Day with her father in 2011 and 2013 but no further.
Mr Maiden submitted for the mother that there is still a risk to [Z]’s safety. At present, the father is living with his parents and they, along with Ms B and the father’s siblings, are all available to supervise. The father would lose very little and would suffer little inconvenience.
The Independent Children’s Lawyer submitted that there was a sound basis for reasoning that starting [Z]’s time with her father on Boxing Day in each year may nurture her relationship with her father in the long run. The mother has said that [Z] has expressed a wish to spend Christmas Day with her siblings, two of who are away at University and would return home during the holidays. The mother conceded in cross-examination that she had no reason to doubt that [Z] would enjoy spending time with her father on Christmas Day if that were ordered. The father’s relationship with [Z] would not be weakened or relegated to a lesser status if the father were to celebrate Christmas with her on Boxing Day.
As to supervision, the Independent Children’s Lawyer submitted that Dr B took an overly conservative approach in recommending
12 months further supervision and had stood firm on his later recommendation of six months. Dr B had conceded that this was not a case where there was a substantial risk of harm. He did not demur when it was put to him that in the absence of an assessment of a substantial risk of harm a period of supervision was really about the dynamics between [Z] and her mother, specifically to allow [Z] to go off and see her father in the knowledge that her mother could be comfortable that another adult was present.
Further, the Independent Children’s Lawyer submitted that Dr B placed excessive weight on the father’s lack of insight into the effect on the children and their mother of his suicide attempt and his behaviour whilst the family members were all on holiday in New Zealand.
The Independent Children’s Lawyer proposed that, if the Court were concerned about the father not having a general medical practitioner in Sydney, the Court could make orders in respect of the father’s time with [Z] conditional upon the father consulting one general practitioner at monthly intervals and for the Independent Children’s Lawyer to verify the father’s attendance over the period of supervision.
The Independent Children’s Lawyer submits that a period of supervision for a period of four months is appropriate.
The Relevant Law
Section 60CA of the Family Law Act 1975 requires the Court, when considering making a parenting order, to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of section 60CC.
I have considered all of those matters.
This is not a matter where the Court need consider applying the presumption of equal shared parental responsibility as required by subsection 61DA(1), because the parties have already dealt with that issue in the consent orders of 22nd July 2011.
One of the primary considerations is set out in paragraph 60CC(2)(a):
The benefit to the child of having a meaningful relationship with both parents.
In this case, the father at present has no relationship with his three older children, but he retains a relationship with [Z]. Whilst he may lack insight into why his earlier behaviour led to his estrangement from the other three children, the father clearly wishes to pursue a meaningful relationship with his younger daughter.
It also emerges from the Single Expert Report that [Z] enjoys her current relationship with her father and did not display any clinically elevated anxiety symptoms. [Z] was reported to appear happy to see her father and Ms B at the interview with Dr B “and looked relaxed and comfortable, sitting on her father’s knee.”[8]
[8] Single Expert Report at [72]
Dr B reported [Z] to have spoken positively about her last visit to her father and to have described a good relationship with her paternal grandparents and Ms B.[9] In his oral evidence, Dr B expressed the view that [Z] was of an age and maturity that would allow the Court to give weight to her expressed views (see paragraph 60CC(3)(a)).
[9] Ibid at [69]
[Z] appears to have a positive relationship with her mother and her siblings (s.60CC(3)(b)). I am satisfied that there is a benefit to this child in having a meaningful relationship with both of her parents.
The other primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s.60CC(2)(b)). The mother fears that [Z] may still be at risk from the father, whose reported behaviour in the events leading up to the parties’ separation would certainly raise concerns about the child’s safety. That behaviour had a destructive effect on the father’s relationships with his other children.
However, the father has undergone a considerable amount of treatment and has been seeing [Z] regularly, without incident, for some time. He is no longer seeing a psychiatrist, which has caused Dr B some concern. He is yet to establish a relationship with a general medical practitioner in Sydney, but that should not be difficult to arrange.
The father’s proposal is for a period of supervision of only three months. He does not see the need for it and regards it as an inconvenience. The father’s proposal sounds rather like a “token” proposal, or a sop to alleviate the mother’s anxiety. I am mindful of
Dr B’ view of the father’s lack of insight into the effect of his previous behaviour on the children.
The mother may be overly conservative in her desire for a further period of twelve months, or at least six months, as proposed by Dr B, but I am inclined to take a conservative view where the safety of a child is concerned. I am mindful of Dr B’s evidence that there is not a significant risk of harm to the child.
Erring on the side of caution, perhaps, I am of the view that the father’s time with [Z] should be in the presence of Ms B, or a suitable adult relative from the list that he has provided in his Minute of Proposed Order, until the proposed times when [Z] is to spend time with her father over the Christmas period and in the January school holidays have expired. As the last day of the father’s Christmas/January school holiday time with the child is 17 January, it can be seen that the period during which the father is to be accompanied by another adult amounts to five months. As the father is presently living with his parents and has not given any evidence of any immediate proposal to live elsewhere, this would not appear to impose any serious hardship on him.
If those arrangements proceed smoothly, it would be my view that the need for a supervision order would no longer be apparent. However, I will order that the father should become a patient of a general medical practitioner and provide details of this GP’s name and address to the Independent Children’s Lawyer. It will be a condition of the order that the father attend upon the selected general practitioner on three occasions over that period and provide evidence to the Independent Children’s Lawyer that he has attended on three occasions at intervals of no less than six weeks. The Independent Children’s Lawyer submitted that the father should attend on the general practitioner at monthly intervals, but I consider this to be unduly onerous on the father and probably unnecessary.
Clearly, the Independent Children’s Lawyer will need to remain involved until the end of January 2012.
The father proposes that [Z] spend two out of the next three Christmas Days with him. The mother, with the support of the ICL, believes that the father’s time should start on Boxing Day in each year, to enable [Z] to spend time with her brothers and sisters on Christmas Day. Dr B has warned that, eventually, [Z] will want to spend that time with her older siblings. In time, this could affect her relationship with her brothers and sister.
Weighing up these considerations, I note that [Z] has not spent Christmas Day with her father since before Christmas 2008. I am of the view that the father’s amended proposal, for two Christmas Days out of the next three but none thereafter, has some merit. This Christmas it would seem likely that the father would be spending time with his parents in any event, and it would appear to be beneficial for [Z] to have Christmas Day with her father’s extended family. The mother should have no concerns about supervision on that occasion. For Christmas 2012 the child would spend Christmas Day with her mother and older siblings, whilst for Christmas Day 2013 she would spend time with her father and, presumably, his extended family. From then on, following Dr B’s recommendation, [Z] would spend each Christmas Day with her mother and siblings and start her time with her father on Boxing Day.
It may not be unduly optimistic to surmise that, if [Z]’s time with her father under these orders is seen to progress smoothly, her older siblings may come to understand that this arrangement is of benefit to their younger sister and may even be persuaded that some contact with their father may be in their best interests. Time will tell.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 17 August 2011
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