Seekamp and Seekamp

[2009] FamCA 1372

FAMILY COURT OF AUSTRALIA

SEEKAMP & SEEKAMP [2009] FamCA 1372

FAMILY LAW – CHILDREN – psychologist report re time child spends with father – application of father to commence recommendations of psychologist – supported by ICL – mother wants time supervised – father’s application approved providing all periods of time spent with child are supervised

Family Court Act 1975 (Cth)

APPLICANT: Ms Seekamp

RESPONDENT: Mr Seekamp

INDEPENDENT CHILDREN’S LAWYER: Robert Winter

FILE NUMBER: ADC 1363 of 2008

DATE DELIVERED: 17 September 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 17 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: White Berman & Co

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Paul G Doube

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms DuBarry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Robert Winter LSC

Orders

ORDER UNTIL FURTHER ORDER

1. That the child C born … August 2007 spend time with the father as follows:

   a.   from 9.30am until 12.30pm on Sunday 27 September 2009;

   b.   from 9:30am until 12:30pm on Sunday 4 October 2009;

   c.   from 9:30am until 12:30pm on Sunday 18 October 2009;

   d.   from 10:00am until 4:00pm on Sunday 25 October; and

   e.   from 10:00am until 4:00pm on each Sunday thereafter.

   UPON the following conditions:

   i.all periods of time that the child spends with the father be supervised by the paternal grandmother;

   ii.all handovers at the commencement and conclusion of the above times take place at the N Children’s Contact Service.

2. That Dr S psychologist attend the first session of time spent, namely 27 September 2009 and if available also attend the second session of time spent namely 4 October 2009, and at his discretion attend an additional session of time spent.

3. That the father do attend and complete the parenting orders program ‘KidsAreFirst’ run by Anglicare and for that purpose the father contact the program at … within 7 days.

4. That the Registry Manager provide a copy of this order to the program provider.

5. That the father as soon as practicable attend a counsellor specialising in the impact of domestic violence or undertake a course addressing the issue of domestic violence.

6. That these proceedings be adjourned to a Registrar at 10:30am on 6 October 2009 with a view to listing the case for a first day of trial and making necessary orders in that regard.

7. That the Application in a Case filed by the father on 3 July 2009 and the Response filed by the mother on 5 August 2009 be dismissed and removed from the active pending cases list.

8. That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1363 of 2008

MS SEEKAMP

Applicant

And

MR SEEKAMP

Respondent

EX TEMPORE REASONS

1. This is a matter that was last before me on 7 August 2009. It was adjourned to today to await a report from Dr S which was a report that was in train before 7 August 2009.  I note that I made an order continuing, in effect, the previous arrangement which was that the child spend time with the father on a supervised basis at N Children’s Contact Service and I further gave leave to the parties to file affidavits in relation to the report of Dr S as they may be advised.

2. What has happened since 7 August 2009 is we now have the report of Dr S but no affidavit had been filed by either party. Mr Berman has said that his client has prepared an affidavit but it is not yet filed.  He does not seek an adjournment though to enable that to occur before I proceed with this matter. The other important thing to note of course is that the time spent at the children’s contact service has continued as per my order.

3. The issue today is what should happen in the immediate future.  The father seeks, in effect, that the recommendations of Dr S be put in place, namely that the child now spend weekly periods with the father, for example, from 10:00am to 1:00pm and then after 2 or 3 weeks from 10:00am until 4:00pm supervised by the paternal grandmother or other approved family member, as opposed to continuing to spend time with the child on a fortnightly basis at the children’s contact service.

4. That is an outcome supported by the Independent Children’s Lawyer, but at this stage it is opposed by the mother.  The mother’s position is that there should be a continuation of time spent at the children’s contact centre and, as I understand it, there are six sessions still available into the future. 

5. The basis of the mother’s position appears to be that Dr S, in addition to making the recommendation I have just referred to, has been quite forthright in recommending that the father attend parenting courses and also attend a counsellor specialising in the impact of domestic violence, but primarily that the father undertake the Kids Are First course.  I will not repeat it all but the basis of that recommendation is set out in some detail in Dr S’s summary and opinion commencing at page 9 of his report, but particularly on page 10 in the second complete paragraph where Dr S sets out his assessment of the father’s position and raises concerns about it and the need for the father to become aware of, as he describes it, his role in the turbulence and probable violence of their relationship. Thus the mother says that until the father undergoes those courses it would be premature and not in the child’s best interests to change the current arrangement, and once the father has attended those courses then the future can be considered at that time.

6. Upon enquiry from me Mr Berman indicates that his client really wants to wait and see what happens about that, but if pressed she would be suggesting that there be supervised time but supervised by her mother, the maternal grandmother.

7. One of the practical problems that has arisen in the case is that Ms Lewis says that there are delays and significant delays in undertaking the Kids Are First course.  That is not my understanding, but in an attempt to clarify that I asked the counsel for the Independent Children’s Lawyer to contact Kids Are First.  She did that, but she was not able to obtain any information as to whether the father could get into a course quickly or not. Thus that may be a practical problem here. It is not necessarily the cornerstone but it is an important plank of the mother’s position in terms of proposing that the father undergo that course and in the meantime maintain the current arrangement of supervised time at the Children’s Contact Service.

8. I must say that having read Dr S’s report I am concerned, as Dr S is, about the attitude not only of the father but also of the mother, and Dr S comments in relation to the mother’s position in that same section of his report, and I will not repeat it. 

9. The fact of this matter, though, is that the father now has spent approximately 10 months in only having time with his child at a supervised contact centre.  Dr S refers to, and it is not a surprise because it is a common understanding, that supervised time at a contact service is not necessarily the ideal environment to maintain and continue an appropriate relationship between a parent and a child. It obviously provides necessary safeguards where that is required, but it has its disadvantages and compared with, for example, what might be termed a more natural environment at, say, the home of the party properly supervised then there are advantages that can be seen in that latter circumstance, and that is what the father wants to move to.

10. There is now a recommendation from an expert that that occur, and I have before me reports from the children’s contact service which indicate a perfectly proper relationship between father and child. No issues are raised in that report or those reports of any concerns about the father’s interaction with the child, and also I note that for the last two occasions - I think I am right in saying the last two but certainly two of the most recent occasions that the paternal grandmother has attended at those sessions and equally with the assessment of the father there is nothing of concern that is raised in the report in relation to the paternal grandmother’s interaction with the child, indeed, it is all very positive.

11. Thus if that was all there was in this case then it would be hard to see what would be the difficulty or the problem in terms of moving to a situation where there was still supervised time but supervised obviously by, say, the paternal grandmother but in more congenial circumstances and more natural circumstances for the child and the child’s father.

12. But that is not all there is in this case and that is highlighted in Dr S’s report and I am particularly referring again to his assessment of the mother and her views about the father and the history of this matter and her concerns about the safety and welfare of the child.  That is the other side of the coin, and it is a significant issue and that is what I have to take account of in making a decision about how this matter should progress.

13. I am obviously hamstrung somewhat by the fact that I cannot say with certainty how quickly the Kids Are First program can get underway, and I raised the question with counsel which was what is the difference or what are the advantages or disadvantages of moving to a different regime of supervision in this case and Mr Berman has highlighted that the issue is really the mother’s acceptance of that and the impact on the child if she does not accept that, and that has been an ongoing issue Mr Berman has told me, and I accept, that the mother has had counselling and continues to have counselling and I encourage that and I encourage her to continue to address this issue because it is obviously impacting upon her life and presumably the child’s life.

14. It is a difficult matter, it is a complex matter, and we are talking about the safety and welfare, and the wellbeing and best interests of a very young child, but for my part in a situation like this, in an interim hearing, I am not in a position to make any finding as to any disputed facts.  I look for independent evidence to provide a way forward, and obviously I put a great deal of store in the recommendations of the Independent Children’s Lawyer who is there to represent the interests of the child the subject of these proceedings, and to repeat the Independent Children’s Lawyer recommends that Dr S’s recommendations be adopted at this point, and that is what I propose to do.

15. I consider that it is certainly time to move on from the Children’s Contact Service.  My only reservations, as I have expressed and I repeat because they are important, is the lack of clarity about when the Kids Are First program can take place and my concern about obviously the mother’s view of a changed arrangement. Perhaps though, there is an order that I can make which Dr S proposes himself, namely that he be involved in the initial session after a change.  Indeed my view is it would be appropriate for him to perhaps attend, if he is able to, the first couple of sessions under the new arrangement that I am about to put in place.

16. I should also say that I do not necessarily accept the submission of Mr Berman that it is necessary to have the Kids Are First program completed before there is a movement to a new arrangement.  The Kids Are First program is necessary.  It can happen alongside of the changed arrangement and the father can bring what he learns at that program to his ongoing time with his child, and the bottom line, I suppose, is that we are not talking about unsupervised time, we are talking about supervision by an appropriate supervisor namely the paternal grandmother. 

17. I have read her affidavit and I have read the affidavit of the mother where she raises issues about the paternal grandmother.  I have read Dr S’s report.  I have heard submissions also from the Independent Children’s Lawyer and I am satisfied that the paternal grandmother is an appropriate supervisor and will supervise in the knowledge of the issue which is the concerning one, namely her son’s attitude to the mother and the history of this matter, and at this stage his failure to accept and appreciate his role in how this matter has progressed to date. 

18. I would hope that the paternal grandmother reads very closely the report of Dr S and takes on board what Dr S is saying and, in her supervision, is always aware of those issues. Equally, not forgetting the mother’s position.  This is not one-sided, and clearly I expect the mother to be disappointed, to put it perhaps mildly, with the result that I am about to provide but I have to look at both sides.  But importantly I am charged with addressing what is in the best interests of the child and, in my view, this is now what is in the best interests of this child. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland

Associate