Saller & Danell
[2015] FamCA 391
•22 May 2015
FAMILY COURT OF AUSTRALIA
| SALLER & DANELL | [2015] FamCA 391 |
| FAMILY LAW – INTERIM PROCEEDINGS – PARENTING – Application by father for overnight unsupervised time – Where the children live with the mother – Where there is a high conflict relationship between the parties– Where the father seeks interim orders be made, despite the existence of a family violence order, pursuant to s 68P of the Family Law Act 1975 (Cth) –Where the expert report recommends that the children spend the majority of their time with the father – Orders for weekly supervised overnight time with the father. |
| Family Law Act 1975 (Cth), ss 60CC, 68P |
| APPLICANT: | Mr Saller |
| RESPONDENT: | Ms Danell |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 575 | of | 2015 |
| DATE DELIVERED: | 22 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 18 May 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sansom |
| SOLICITOR FOR THE APPLICANT: | Rossi Simicic Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell |
| SOLICITOR FOR THE RESPONDENT: | Newnhams Solicitors |
| Ms Connor | ||
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER : | Legal Aid NSW |
Orders
PENDING FURTHER ORDER
The Orders made 25 February 2015, as hereunder set out, are to continue subject to the extensions and alterations as are provided for later in these Orders:
1. The children [B] born … 2007 and [C], born … 2010 live with the mother at all times otherwise than when they are with the father pursuant to the orders made today.
2. The children are to spend supervised time the father each Wednesday and Friday for up to three hours commencing at 4.30 p.m., and on each Saturday and Sunday for four hours commencing at 11.00 a.m.
3. On each occasion of Wednesday and Friday time the father is to provide the children with their evening meal. On each occasion that the children spend time with the father on a weekend, the father is to provide their lunch meal.
4.The changeover of care from the mother to the father is to be as follows:
a. The mother is to deliver the children to the supervisor at the McDonald’s family restaurant at [Suburb D] (“the changeover venue”) at the time the children are due to commence time with the father. The father is not to approach the changeover venue or be within a 1 kilometre radius of that place until 15 minutes after the time appointed for the commencement of his time with the children and having first complied with Order 6 on any scheduled occasion pursuant to these orders.
5.The changeover of care from the mother to the father is to be as follows:
a. At the conclusion of the father’s time with the children he is to ensure their return to the changeover venue by the appointed time for the conclusion of his time and he is to depart from that place before the conclusion time, and is to be no closer than 1 kilometre from the changeover venue by the time the changeover to the mother is due.
6. In any event the father is not to attend the changeover point for the commencement of his time with the children until:
a. He has received a text message from the supervisor advising that the children have been delivered, and
b. 15 minutes have elapsed after receiving such a text message.
7. At the conclusion of the father’s time with the children, the mother is not to approach the changeover venue until:
a. She has received a text message from the supervisor advising that the children have been delivered, the father has left the venue, and
b. A period of 15 minutes has elapsed after receiving the text message from the supervisor.
8. In the event of the father refusing or failing to comply with any request made by the supervisor of him during the period of supervised time with the children, the supervisor is to notify the mother of such failure and as and from such notification the orders providing for the children to spend time with the father will stand suspended.
9. Pursuant to section 68P of the Family Law Act, it is noted that section applies to these orders in that they are in part contrary to the provisions of a Family Violence Order made 5 February 2015 of E Town.
10. The court notes that the orders made for the children to spend time with the father in the manner set out in these orders are an interim measure having regard to what is considered to be in the children’s best interests at the time of making the orders.
11. The father is permitted to spend the time allocated to him with the children pursuant to these orders at any place in the [F Town] area which is approved by the supervisor, including at the home in which he resides.
12. Prior to the jointly agreed supervisor, [Ms G], of [H Street, Suburb I] commencing her role as a supervisor of the father’s time with the children, she is to be supplied with 2 copies of these orders, one of which she is to sign to acknowledge receipt and knowledge of the orders and return same to the father’s solicitor, who is to provide a copy of same to the mother’s solicitor.
13. In the event of [Ms G] not being available to act as supervisor of the father’s time with the children pursuant to these orders, then a supervisor supplied by [J Org] or any other supervisor agreed to in writing by the parents shall supervise the father’s time with the children.
Order 2 made 25 February 2015 is varied to provide that the time for the father to spend with the children each Wednesday and Friday is to commence at 4.00 pm and conclude at 7.00 pm. The time the children spend with the father on each Saturday and Sunday is to commence at 10.00 am and conclude at 4.00 pm.
In the event that the father can provide supervisors acceptable to the Independent Children's Lawyer and the mother (or the Court in the case of a dispute) who can supervise his time with the children for overnight time then Order 2 of 25 February 2015, together with the amendments to that Order contained herein, shall be suspended (subject to the later provisions herein contained) and the children shall spend the following times with the father:
(i) In week 1 from 4.00 pm on Monday until the commencement of school/pre-school on Tuesday; and
(ii) In week 2 from 4.00 pm on Friday until the Sunday morning at 10.00 am.
For the purpose of Order 3 hereof week 1 will commence on the first occasion the father is able to exercise overnight supervised time with the children on a Monday during the school term. If the first time the father can exercise overnight supervised time with the children is a Friday then the cycle will commence with week 2 as and from that time.
The supervised time the father is to spend with the children pursuant to Order 3 (ii) hereof is to increase so that it concludes at the commencement of school/pre-school on the following Monday upon the father having exercised the time provided for in Order 3(ii) on three occasions within a period of 12 weeks.
THE COURT NOTES:
The purpose of allowing for the exercise of the father’s time pursuant to Order 3(ii) on three occasions over a period of 12 weeks is to allow for the contingency that the father may not be able to arrange supervision consistently for weekend periods.
The Court intends by these Orders that the children spend frequent time with the father. To that end, if the father is able to exercise overnight time with the children on an alternate weekend basis as provided for in these Orders, then the children will have alternate weekends in the mother’s care. If the father is unable to exercise overnight weekend time with the children then they are to have time during the day with the father on weekends as provided for in Order 2 of 25 February 2015 as modified by Order 2 hereof. Likewise, if the father is unable to arrange supervision for overnight time on Monday nights, then the Orders are to operate as provided for in Order 2 of 25 February 2015 as modified by Order 2 hereof.
The father is not to physically chastise the children nor leave them unsupervised at any time.
The father is not to chastise or strike the family dog.
10.The father is not to yell at the children or in their presence.
11.The father is not to allow the children to watch any visual presentation which does not have a “G” rating.
12.The father is not to kiss the children on the mouth.
13.Neither party is to change the children’s places of education unless agreed to in writing or further order of the Court.
14.The father is not to consume alcohol to excess or to consume or administer any non-prescribed medication/drug to himself at any time when the children are in his care or within a period of 12 hours prior to the children coming into his care.
15.The mother is not to consume alcohol to excess at any time when the children are in her care or within a period of 12 hours prior to the children coming into her care.
16.The mother is not to interfere with the father’s occupancy of the property at K Street, Suburb L in the State of NSW unless he agrees in writing or there is a further order of the Court.
17.The interim financial/property orders sought by each of the parties, including the issue of occupation of the property at K Street, Suburb L are to be listed for hearing in the duty list at 9.30 a.m. on 17 August 2015.
18.The parenting proceeding herein is expedited.
19.Each party has liberty to restore the matter to the list on seven days’ notice.
20.The mother may take the children to Melbourne for one week during the July school holidays.
21.Changeover of children, except where it is specified to take place at school, is hereafter to take place at Suburb M McDonalds.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saller & Danell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 575/2015
| Mr Saller |
Applicant
And
| Ms Danell |
Respondent
And
Independent Children's Lawyer
REASONS FOR JUDGMENT
Introduction
Before the Court is an application seeking interim orders which was filed by the father, Mr Saller, on 24 February 2015. He seeks parenting and financial orders be made on an interim basis. The mother, Ms Danell, by her Amended Response to Initiating Application filed 14 May 2015 opposes those orders and seeks interim financial orders and parenting orders.
This matter was in the duty list before me on 25 February 2015. As an urgent measure I made Orders on that day as follows:
PENDING FURTHER ORDER IT IS ORDERED THAT
14.The children [B] born … 2007 and [C], born … 2010 live with the mother at all times otherwise than when they are with the father pursuant to the orders made today.
15.The children are to spend supervised time the father each Wednesday and Friday for up to three hours commencing at 4.30 p.m., and on each Saturday and Sunday for four hours commencing at 11.00 a.m.
16.On each occasion of Wednesday and Friday time the father is to provide the children with their evening meal. On each occasion that the children spend time with the father on a weekend, the father is to provide their lunch meal.
17.The changeover of care from the mother to the father is to be as follows:
a.The mother is to deliver the children to the supervisor at the McDonald’s family restaurant at [Suburb D] (“the changeover venue”) at the time the children are due to commence time with the father. The father is not to approach the changeover venue or be within a 1 kilometre radius of that place until 15 minutes after the time appointed for the commencement of his time with the children and having first complied with Order 6 on any scheduled occasion pursuant to these orders.
18.The changeover of care from the mother to the father is to be as follows:
a.At the conclusion of the father’s time with the children he is to ensure their return to the changeover venue by the appointed time for the conclusion of his time and he is to depart from that place before the conclusion time, and is to be no closer than 1 kilometre from the changeover venue by the time the changeover to the mother is due.
19.In any event the father is not to attend the changeover point for the commencement of his time with the children until:
a.He has received a text message from the supervisor advising that the children have been delivered, and
b.15 minutes have elapsed after receiving such a text message.
20.At the conclusion of the father’s time with the children, the mother is not to approach the changeover venue until:
a.She has received a text message from the supervisor advising that the children have been delivered, the father has left the venue, and
b.A period of 15 minutes has elapsed after receiving the text message from the supervisor.
21.In the event of the father refusing or failing to comply with any request made by the supervisor of him during the period of supervised time with the children, the supervisor is to notify the mother of such failure and as and from such notification the orders providing for the children to spend time with the father will stand suspended.
22.Pursuant to section 68P of the Family Law Act, it is noted that section applies to these orders in that they are in part contrary to the provisions of a Family Violence Order made 5 February 2015 of [E Town].
23.The court notes that the orders made for the children to spend time with the father in the manner set out in these orders are an interim measure having regard to what is considered to be in the children’s best interests at the time of making the orders.
24.The father is permitted to spend the time allocated to him with the children pursuant to these orders at any place in the [F Town] area which is approved by the supervisor, including at the home in which he resides.
25.Prior to the jointly agreed supervisor, [Ms G], of [H Street, Suburb I] commencing her role as a supervisor of the father’s time with the children, she is to be supplied with 2 copies of these orders, one of which she is to sign to acknowledge receipt and knowledge of the orders and return same to the father’s solicitor, who is to provide a copy of same to the mother’s solicitor.
26.In the event of [Ms G] not being available to act as supervisor of the father’s time with the children pursuant to these orders, then a supervisor supplied by [J Org] or any other supervisor agreed to in writing by the parents shall supervise the father’s time with the children.
27.Each party has liberty to relist the matter on short notice.
28.I order that pursuant to section 68L(2) of the Family Law Act, the interests of the children [B] born … 2007 and [C], born … 2010 be independently represented by a lawyer and it is requested that the Legal Aid Commission of New South Wales make arrangements as soon as practicable to secure that independent representation of the child's interests.
29.The Independent Children’s Lawyer has leave to inspect and copy any subpoena material and the Court file.
30.I direct that the parties jointly appoint a single expert approved by the Independent Children's Lawyer to prepare a report for this court pursuant to an appointment detailed by the Independent Children's Lawyer.
31.The Independent Children's Lawyer is to provide a copy of the proposed minute of appointment of the single expert and provision for payment of that expert to my associate for the purpose of orders being made in chambers.
32.I direct the parties attend a conference with a family consultant of the Court on 27 April 2015. The father is to attend at 9.00 a.m. and the mother at 11.00 a.m. The family consultant is to provide a report in the nature of a memorandum to my associate for release to the parties unless I order to the contrary.
33.The matter is listed in the judicial duty list on 4 May 2015 at 9.30 a.m.
On 4 May 2015 the matter again appeared before me in a Duty List and as it required three hours of hearing time was adjourned by me to 18 May 2015 for hearing.
Each of the parties sought to rely on extensive affidavit material which, if read, would not have contained the hearing to a day, let alone three hours. On that basis, I sought that each of the parties restrict the amount of affidavit evidence they were to rely upon to 15 pages. The father was able to do that however the mother could not. She did, however, reduce the amount of material she sought to rely upon.
The father relied on a minute of order which was marked as Exhibit F1. The mother did not oppose the father being able to proceed on the basis that the interim parenting orders sought by him and an order for sole occupation were as contained in Exhibit F1. By that minute the father sought the children spend time with him on an overnight basis each week together with half of the school holiday periods. He sought other orders in relation to changeover of care and restraints against the mother changing the children’s schooling, consuming alcohol, denigrating the father within the hearing of the children or speaking about the proceedings in the hearing of the children.
The father noted that there was a apprehended violence order made 5 February 2015 and that the orders sought by him ought be made pursuant to s 68P of the Family Law Act 1975 (Cth) (“the Act”) notwithstanding that family violence order. He also sought an order for sole occupation of the property at K Street, Suburb L which he currently occupies as his home.
The mother moved for the interim orders contained on pages 4 – 6 of her Amended Response filed 14 May 2015. The mother sought financial orders and parenting orders. She sought the father have supervised time with the children each Wednesday and Friday from 4.00 pm to 7.00 pm and each Saturday from 9.00 am to 5.00 pm. She sought the changeover point be at the Suburb M McDonalds. She sought that the supervisors be either Catholic Care or J Org Supervision Services. She sought injunctions against the father restraining him from consuming alcohol to excess when the children are in his care, consuming medication or drugs, unless prescribed by a medical practitioner, leaving the children without adult supervision, administering corporal punishment to the children, allowing the children to watch any television program or DVD or movie that has anything other than a G rating, discussing the proceedings in the hearing of the children or kissing the children with an open mouth.
The mother then sought orders for the father to undertake hair follicle testing for illicit substances, urine testing for illicit drugs and liver function testing in relation to alcohol ingestion.
The father set out the evidence he relied on as a notation at the conclusion of Exhibit F1. He relied on his affidavit sworn 24 February 2015, pages 7 – 20 (not including 13, 14, 9 and 10). He relied on the affidavit of Ms G sworn 1 May 2015 and he relied on paragraphs 18, 19 and 20 of his affidavit sworn 1 May 2015.
Relevant to the interim parenting orders and the order for occupation of the property at K Street, Suburb L, the following evidence from the father is noted.
The father set out history of his care for the children during the cohabitation which concluded on 24 January 2015. In that evidence he alleged that whilst he consumed a moderate amount of alcohol during cohabitation, the mother consumed significantly more alcohol than he did and engaged in sporadic binge drinking sessions. He alleged that this gave rise to the mother being “severely intoxicated”. She became violently ill and then “passed out”. The father says this took place on occasions in the presence of the children, who were distressed. As a consequence of that evidence, the father seeks an order restraining the mother consuming any alcohol whilst the children are in her care.
The father set out his evidence in relation to what happened at the point of separation.
On 29 January 2015 the father called the O School and spoke to a person there. He was informed the mother had contacted the school and informed the school that the children would not be attending on the first day. Since that time the children have in fact resumed attending the O School.
On 24 January 2015 the mother in P Town, New South Wales, applied for and obtained, an Apprehended Violence Order against the father. That order included the children as protected persons. On 5 February 2015 the father attended at E Town Local Court in relation to the Apprehended Domestic Violence Order which had been made by the New South Wales Police. The order included the children’s names. The father opposed a final order being made. He consented to an interim order on a without admission basis. The additional orders on the interim order prevented the father from approaching the protected persons except through legal representatives, as agreed in writing or as permitted under the Act The order also prevented the father from approaching the school or other premises from which the protected persons from time to time attend. The proceeding was relisted for mention again on 19 March 2015.
The father has spent time with the children in a supervised environment and supervisors have provided reports in relation to that time. The father denies that it is necessary for his time with the children to be supervised.
In February 2015 the father received a visit from two female RSPCA inspectors. They told him they had received a complaint of an animal being abused at the property. They observed the father’s dog “Q”. He denied that Q had been mistreated. The father annexed copies of reports dated 13 and 20 February 2015 from the supervisors of his time with the children. Both those reports are evidence of appropriate and enjoyable contact between the children and their father.
In relation to the allegations of domestic violence, the father said “The relationship between the mother and I has been volatile at times and we have had heated arguments.” He denied allegations of domestic violence made by the mother as support for the apprehended domestic violence order. He denied that he had ever been aggressive to, or assaulted, the children. He denied he had assaulted the dog Q.
The father relied on the affidavit of Ms G sworn 1 May 2015. She says she was a friend of both the parties. She consented to being a supervisor of the father’s time with the children. She described her observations of the interaction between the father and the children during the periods of time she supervised them. Her descriptions of that time lead to the conclusion that it was predominantly a happy and appropriate time for the children with their father. I note that Ms G (also known as Ms G) was appointed as a jointly agreed supervisor pursuant to paragraph 12 of the Orders made by the Court on 25 February 2015.
The father’s affidavit of 1 May 2015 sets out details of his endeavours to obtain employment. He has not yet obtained employment, however enquiries are being made on his behalf.
The mother relied on pages 8 – 17, 19 and 20 of her affidavit sworn 24 February 2015. In that affidavit, she claimed that in February 2014 she intervened to stop the father hitting B. The mother is critical of the father’s care for the children; in particular, that he attended to his own needs before attending to those of the children. She complained that he had berated C when she was three. She said that he had acknowledged that he had yelled at C. She said C had complained to her that the father smacks her if she urinates in the car. She alleged that in September 2014 the father had left the girls alone in the house while he walked the dog. She said that in September 2014 she found C asleep in the car. Also in that month the father agreed that he had left the children in the car for about 10 minutes while shopping. The mother cited other instances where similar events had occurred. In October 2014 C had a sore arm. The father told her that he had pulled her by the right arm as she attempted to run away from him.
The mother relied on exchanges between her and the father in January 2015 in the presence of Ms N, a psychologist. It is not clear why the parties were seeing Ms N, however, given the timing it is possible, if not probable, that the conversations relied on by the mother are not admissible pursuant to the Act.
The mother alleges that she was the victim of domestic violence at the hands of the father throughout the relationship. The form of domestic violence can be summarised as follows:
·He controlled the way in which she cleaned the home;
·He criticised her cooking and the way she washed dishes;
·He criticised her housekeeping;
·In November 2007 he motioned towards her in a threatening manner causing her to be frightened;
·In January 2008 he head-butted her;
·He bullied her;
·He threw a banana forcibly and hit her;
·He shouted at her;
·He called her “psycho”;
·He pushed her onto the bed and restrained her;
·He restricted her movement within the house;
·He kicked the family dog on many occasions;
·He punched the dog;
·He beat the dog with a broomstick;
·He intimidated her;
·He swore at her; and
·He made unwanted sexual advances to her;
The mother says that throughout the cohabitation both she and the father drank alcohol. She denies that she was a binge drinker. She said that when the father drank alcohol he became aggressive towards her both verbally and physically.
In September 2014 the mother found syringes in the father’s bedroom. When she asked about the syringes he told her he injected steroids into his thigh. He told her he knew they were illegal. In January 2015 the father told the mother he was going to start taking steroids again.
The mother says that the father forced himself upon her sexually. She described this as “sexual assault”.
The mother annexed to her affidavit the Interim Apprehended Violence Order made 5 February 2014.
It is also the mother’s case that the father has “anger management issues”. She included copies of conversations which she says supports that allegation.
The mother relied on her affidavit sworn 29 April 2015 pages 6 and 7. She referred to the Orders made by the Court on 25 February 2015. After agreeing to the changeover point being Suburb D McDonalds, the mother says that it is not convenient for the children’s routine and she seeks a change. She says the changeover point is exhausting and unsustainable for the children and herself. It is a 30 minute drive from her home to Suburb D McDonalds. She seeks that the changeover point be Suburb M McDonalds. That change would enable her to have the children in bed sooner than currently is enabled on the days that they spend time with their father. She says the father does not tend to take the children to the family home in Suburb L when he exercises time with them. I note, however, that the father’s time with the children is significantly restricted by the current Orders. The mother seeks that the father’s time with the children be restricted to one day on a weekend rather than two.
The mother seeks that she be permitted to take the children to Melbourne for a week during the July school holidays. She would like to have a full weekend with the children so that she can plan “trips away” with the children. She wishes to return to the Suburb L home.
The mother relies on her affidavit sworn 13 May 2015. In that affidavit she relies on paragraphs 7, 19, 35, 54 – 56. In that affidavit the mother addresses the report of Dr R dated 30 April 2015. In relation to the statements by Dr R about the mother breastfeeding C, the mother says that she told Dr R she was weaning C, however, still continued to breastfeed her on occasions. She denies that she breastfed C whilst at Dr R’s office or attempted to do so.
In relation to Dr R’s comment that “the mother was unable to pacify the child” when referring to C, the mother explained that she had woken the children at 5.00 am on that morning and driven two hours to Suburb S. The implication is that C was tired and emotional and the mother said she “threw a tantrum with me at the end of the second day of interviews”.
Dr R’s statement that the children are still sleeping with the mother and being breastfed is, the mother says, incorrect. She told Dr R the children sleep in their own bed. The mother said that since the separation, the children sleep separately from her. She told Dr R that sometimes in the night they come to her bed after a bad dream.
The mother refers to Dr R’s statement that “Subpoenaed documents verified the father’s evidence that the mother was keen to have a third child with him in late 2014. She was clearly very determined to solve the problem and have another baby with the father.” In relation to that statement the mother said both those statements are incorrect. The mother said she had mistakenly believed that if she could have a baby boy it would fix the problems in the marriage. The mother denies that in November 2004 she attended a clinic for the purpose of investigating whether she could have another baby.
The mother relied on the affidavit of Ms T sworn 14 May 2015. Paragraphs 4 – 8 are relied upon. She said that on 11 December 2015 she had a conversation with the father where he described the mother as “filthy and dirty”. She said she was concerned about the father’s behaviour in that he was “pacing and cursing”. She observed him yell at the dog and kick the dog, pushing the dog towards the back door of the home. She said the dog yelped.
The mother relied on paragraph 7 and pages 8, 9 and 10 of the affidavit of her mother Ms U Danell sworn 30 April 2015. In that affidavit Ms U Danell says that she overheard a conversation between the mother and the father in around 2012 or 2013 where the father asserted the child C should be left in the car sleeping when the car was parked at the parties’ house.
Ms U Danell deposes to a conversation with the father in January 2015. He rang asking if she knew the whereabouts of the mother. He said “I was surfing for about five hours and she hasn’t come home yet. She hasn’t cooked dinner. I am starving hungry. I’ve got nothing to eat.” She said the father called her on about ten occasions in January. She told him that he should not call because of the AVO. In February there were more calls but she did not answer them. On 6 February 2015 she said the father admitted leaving the girls in the car while he went shopping.
Ms U Danell included transcript of text messages she received from the father on 4 and 5 February 2015. These included statements by the father saying “[Ms Danell] has been right and I have been wrong regarding many things for a long time.”, ““[Ms Danell] has been at me for a long time to seek anger management counselling. Again she was right and I am doing so and so much more.”, “Tell “[Ms Danell] I am ashamed of the way I have treated her.”
Ms U Danell deposed to a telephone conversation with the father on 5 April 2015. In this conversation the father said that the mother can move into the Suburb L house right now. He did not offer to move out himself. Ms U Danell said “You’ll bash my daughter up again.” The father said “I only did it once and I said I’m sorry. She called me a rapist.”
The Independent Children's Lawyer relied on the family report prepared by Dr R. That report is dated 30 April 2015. It concludes with the recommendation that the parties have equal shared parental responsibility for the children. It recommends the children spend the majority of time with the father. It recommends the mother have overnight contact with the children five nights a fortnight. It recommends supervision be abolished. It recommends that from the time C starts school in 2016 the children spend half school holidays with the mother.
Exhibit ICL2 is an update letter from Dr R.
In that document Dr R is critical of the mother in that she says the mother has not supervised the children sufficiently and instituted reasonable boundaries on their behaviour. She said that in her view no supervision of the children with the father was required. She considered that on an interim basis the children could have one sleepover night per week and on alternate weekends for three nights: Friday, Saturday and Sunday and to be dropped off at school on Monday morning.
The Independent Children's Lawyer relied on a number of reports by supervisors and tendered those as ICL3. The reports are predominantly positive about the time the children have spent with the father under supervision. She also tendered two tagged pages from the file produced by the New South Wales Department of Family and Community Services. The pages relate to a time span from 27 March 2015 to 30 March 2015. The contact with the Department appears to have been made by telephone call to the Helpline on 27 March 2015. A facsimile was received and it appears to be a copy of a Notice of Child Abuse filed in this Court on 27 March 2015.
The father relied on documents produced under subpoena which were marked as Exhibit F3 and produced by Dr V. It included a letter dated 4 September 2014 being a referral from the W Region Aboriginal Medical Service to Dr V for a consultation in relation to the mother. It contains the following sentence, “This lovely lady is 42 years old and would like to seek your expertise regarding having a third baby.” The mother also relied on pages from this same record and accordingly had it marked as Exhibit M6. It includes details of the father’s personal history and attributes use of “marijuana very occasionally”. The records show attendance by the mother on 17 November 2014. On that occasion she underwent some testing.
The mother relied on records produced by Ms N, psychologist. No objection was taken to the documents produced, although they may be possibly excluded by operation of the Act. Nonetheless, the mother relies on portions of those records taken during the time that the father alone saw the therapist. The therapist recorded that the father said seven years ago he had hit the mother.
The mother relied on documents produced by the O School which she says contain statements contrary to that which Dr R attributed to the school, being adverse comments made by the school about the mother.
The mother relied on documents produced by Victoria Police stating that they have no criminal history for the mother. This, it is submitted, contradicts some of the father’s statements to Dr R about the mother and her antecedence.
Submissions
The Independent Children's Lawyer submits that it is uncontested the children are attached to each parent. The mother has made allegations against the father of domestic violence, family violence, use of illicit drugs, leaving the children unsupervised in a car, that the father has an anger management problem. The father alleges he was the primary caregiver of the children prior to the separation. The father denies most of the allegations of domestic violence.
The parties agreed to appoint Dr R as the single expert. She recommended that the children principally reside with the father and spend time with the mother. As an interim order she suggests that the children spend unsupervised overnight time with the father and Exhibit ICL2, the minute of order submitted by the Independent Children’s Lawyer, reflects that recommendation.
C attends X Pre-School which is attached to the O School on Monday and Tuesday. A changeover at the school would remove the necessity for a changeover point to be nominated.
The Independent Children's Lawyer submits the evidence does not support the necessity for continued supervision. Injunctions should be made to restrain the father from leaving the children unsupervised. The father should also be restrained from using corporal punishment.
The Independent Children's Lawyer referred to the question raised by Dr R as to why C was still being breastfed. Dr R was concerned this was for the mother’s benefit rather than the child’s. Although the mother suggests that the child was being weaned at the time she saw Dr R, the Independent Children's Lawyer said that on page 45 of the J Org Supervision report at the conclusion of the contact C said “I want boobie”. The Independent Children's Lawyer said this was an indication that the child was still being breastfed by the mother.
The Independent Children's Lawyer drew the Court’s attention to the fact that Dr R describes the children’s attachment to the mother as an anxious attachment. She says that the children are enmeshed with the mother. The mother is unable to impose controls on the children.
For those reasons the Independent Children's Lawyer submits it is appropriate to make orders as set out in Exhibit ICL1.
On behalf of the father, submissions are made that the J Org reports illustrate a very positive time for the children with their father. The father’s counsel said that the father would give an undertaking not to leave the children unattended or to impose any physical chastisement. He conceded that an order by the Court to that effect would be appropriate. The father’s case is that he has been the primary caregiver for the children. The mother denies that, however the father relies on Exhibit F2 being a letter from the mother dated 11 May 2010 which supports his contention.
In relation to the criticisms made by the mother of Dr R’s report, the father says that if the Court ignores those parts of the report complained about by the mother and considers only the observations of the interaction between the children and each of the parents as made by Dr R, the Court would conclude that those observations alone would be sufficient to adequately ground the recommendations made by the expert.
The father’s counsel made submissions in relation to s 60CC of the Act. He submitted that in order for the father to have a meaningful relationship with the children that relationship had to be significant. He submits that irreparable damage may be occasioned to the children and their emotional bond with their father if it takes 15 months for the Court to hear and determine the parenting application and during that period the father has limited and restricted time with the children.
In relation to the occupancy of the property, the father submits that the mother wants occupancy of the property occupied by him so that she can rent it out. It was put that there is no basis upon which the father should be required to move out of the property occupied by him since the separation. There were other financial submissions made, however they are not relevant to the matters to be determined by me today.
In relation to the prospect of the father finding a supervisor who would be able to spend overnight time with him and the children, he advised that he was not in a position to provide such a supervisor.
Submissions were made on behalf of the mother. The mother submits that it is unnecessary to find who was the primary carer of the children at the time of separation, but in any event the father’s submissions in relation to same are wrong. The mother makes serious allegations of risk to the children should the father’s time with them be unsupervised. The mother suggested some amendments to the current orders to facilitate the needs of the children.
The mother’s counsel then addressed particular parts of Dr R’s report in order to support a submission that it was unreliable and that the Court should give no weight to it.
The mother proposes that the children spend one day of each weekend with the father only. She proposes that mid-week time should be from 4.00 pm to 7.00 pm. and that the changeover should be at the Suburb M McDonalds. The mother concedes that the children enjoy being with the father. The mother wishes to have a week with the children in Melbourne in July school holidays. In the event of the father having the children with him on both days of the weekend, the mother will have no real recreation time with the children in those circumstances. During the week, both children attend school and the mother is at work.
The mother was asked through her counsel to address the possibility of overnight time supervised in the father’s care. She submitted that it raises concerns about matters of mechanics. How will it be instituted? Will the supervision be able to be properly conducted?
In response to the mother’s submissions the father does not object to the mother having a week with the children during the July school holidays in Melbourne. He did not respond to the mother’s request to change the changeover venue to McDonalds at Suburb M.
Section 60CC and Conclusion
This matter evidences a family where the parents are in high conflict and where the expert has been critical of the mother’s parenting capacity. The mother has attacked the credentials of the expert and the basis upon which she drew her conclusions. There are allegations by the mother of behaviour exhibited towards her and the children, or in the presence of the children, by the father which puts them at risk of harm. The Court is in no position to determine the extent of the risk of harm the children would be exposed to if they were to have unsupervised time with their father.
It is common ground that the children enjoy time with their father. The father alleges that he was the primary caregiver of the children up to the point of separation or at least for some time before the separation. He has provided evidence to support that claim. The extent of the father’s care for the children before separation is at issue.
The children are of an age where their views cannot be given any meaningful weight. Each of the parents have complied with Court orders and taken advantage of opportunities provided to spend time with the children.
This is a case which should be expedited as the children are young and the impact of caregiving to them could have greater significance in terms of their emotional development than a circumstance where the children might be considerably older. I propose to expedite the parenting proceedings.
The Court is required to have regard to the benefit to the children of having a meaningful relationship with both parents. In the same breath the Court is required to protect the child from physical or psychological harm, or being subjected to the possibility of same, including family violence. It is the mother’s case that the children spending unsupervised time with the father exposes them to risk of physical or psychological harm. It is the father’s case that failure to provide adequate time with the children with him will expose the children to psychological harm. Further, his case is that the mother lacks requisite parenting skills as evidenced by the expert’s report.
Subject to each party’s allegations about the other’s excesses during the course of cohabitation it appears that each of the parties has, at a primary and basic level, fulfilled their obligations at maintaining the children. In this case the parties live in the same district and therefore practical difficulties of implementing time with each of the parents are not a real consideration. The mother does suggest some inconvenience and impact on the children of having to drive half an hour to a changeover point. The mother has made allegations of family violence against the father and the father has made allegations of family violence against the mother consisting of his alleging that the parties lived in a volatile relationship.
There is a family violence order in place. That order arises as a result of an interim order being made with the final determination to be the subject of further hearing. The father is opposing the final order being made.
Having regard to all those matters I propose to make orders which will guard against any risk that might exist to the children being in the care of their father by providing supervision. The risks which have been particularly identified by the mother as subsisting post separation include:
1.The father leaving the children unattended in the home;
2.The father leaving the children unattended in motor vehicles (I note this is an offence in the State of New South Wales);
3.The father raising his voice at or in the presence of the children;
4.The father chastising the children in an inappropriate manner, including physical chastising;
5.The children witnessing the father abusing the family dog;
6.The father may use alcohol or non-prescribed drugs inappropriately or at all when the children are in his care; and
7.The father permits the children to view electronic media which is rated above “G”.
8.The father kissing the children on the mouth.
The father alleges the mother poses a risk to the children by inappropriate use of alcohol.
The Court should embrace its responsibility to the children and make injunctions where appropriate to ensure the children are not exposed to any of the risks nominated by each of the parents. Until such time as the Court can determine the nature and extent of the possible / probable risks the children would face spending unsupervised time with their father, that time should continue to be supervised.
In making a supervision order, the Court is always aware of the difficulties that are posed for a parent in having to arrange for a suitable supervisor to be present. It creates an artificiality about the time the children spend with that parent. It frequently is very costly to engage appropriate supervisors where no members of a family or a friendship group are available to attend to carry out such supervision. This then means that the Court needs to move quickly in order to determine these matters of risk and if appropriate to conclude the order for supervision.
In this case the father is not in employment although he is seeking employment. The cost of any employed supervisor needs to be determined and apportioned between the parents if appropriate. There are other financial proceedings between the parties which need to be determined on an interim basis and I propose to make an order listing those matters for hearing.
I propose to make orders which would give the children an opportunity to spend overnight times with their father in a supervised environment and, in the event of the father not been able to arrange for supervision overnight, the current Orders with some modifications are to continue. I propose to make orders to ensure that the children spend time with their father each week. I intend to allow the father to put before the Court any supervisor who he wishes to engage and where that supervisor is not agreed to or supported by the mother or ICL. There is already one supervisor who has been approved by the Court as nominated in the Orders of 25 February 2015.
For those reasons I make the Orders as set out herein.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 22 May 2015.
Associate: S Hawkins
Date: 22 May 2015
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