SELLECK & ALBIN

[2020] FamCA 438

FAMILY COURT OF AUSTRALIA

SELLECK & ALBIN [2020] FamCA 438

FAMILY LAW – CHILDREN – Interim – where the mother has relocated to live closer to the child – orders made for an increase of time between the child and the mother

Family Law Act 1975 (Cth)

APPLICANT: Mr Selleck

RESPONDENT: Ms Albin

FILE NUMBER: BRC 2083 of 2009

DATE DELIVERED: 6 May 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 6 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Cornerstone Law Offices

SOLICITOR FOR THE RESPONDENT: Best Wilson Buckley Family Law

INDEPENDENT CHILDREN’S LAWYER: Ms K Hawdon, Forest Glen Lawyers

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the Orders of Senior Registrar Spink made 30 January 2020, except Order 24, be discharged.

2. That the child X born … 2008  will spend time with the mother as follows:

   (a)each alternate weekend from the conclusion of school Friday (or 3.00pm If it is a non-school day) until before school on Monday (or 9.00am if a non-school day) or if Monday is a public holiday then before school on Tuesday commencing on 15 May 2020;

   (b)for the first half of the school holidays; and

   (c)for mother’s day from 9.00am until 5.00pm.

3. That for all times the child X spends with the mother, X’s interactions with the child Y born … 2006 are to be supervised by either the mother or her partner who shall remain at all times in a line of sight of the children and within a distance of not more than ten (10) meters.

4. That for all times the child X spends with the mother, Y is to be absent from the home of the mother (or residence where X is sleeping if away from the home) between the hours of 8.00pm and 8.00am each day.

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

Changeover

1. That changeover in accordance with these Orders be through X’s school or at C Centre or at the McDonalds Family restaurant at Suburb D if C Centre is closed, with the father to pay all costs of the C Centre.

2. That for all changeovers (save those through the school) both parents are permitted to have their partners attend instead of them, to facilitate the changeover, with all parents to be appropriate in all interactions with each other and no party is to approach the other party or limit X’s ability to move between the parents.

Children’s Living Arrangements

1. That Y live with the mother and she have sole parental responsibility for making decisions for Y.

2. That X live with the father.

Communication with X

1. That the mother communicate with X by telephone, Skype or FaceTime as follows:

   (a)each Tuesday and each alternate Saturday between 6.00pm and 6.30pm with the mother to initiate the call with each call to be private and uninterrupted and not on speaker phone;

   (b)that is for any reason X misses he call referred to above, the father will ensure X calls the mother as soon as reasonably practicable; and

   (c)at all other appropriate times as requested by X with X to initiate the call, and the father not to limit access to privacy.

Special Days

1. That for X’s birthday each year, the parent with whom X is not spending time may elect for X to spend time with him/her from 3.00pm until 6.00pm if a school day, or 1.00pm to 6.00pm if a non-school day, or may telephone X at any reasonable time.

2. That X will spend time on Father’s day with the Father, and if the mother’s weekend falls on father’s day the time will conclude at 9.00am on the Sunday.

3. X will spend time with the mother from 9.00am on Christmas Eve until 5.00pm on Christmas Day with supervision of Y’s time to be in accordance with

   
   

   Orders 3, 4 and 13 herein.

4. That when Y is present during the time X spends with the mother, the mother or her partner will supervise at all times and be vigilant in supervising at all times. In this regard the mother and her partner will:

   (a)ensure that both children are aware that Y is not permitted to ever attend in X’s bedroom;

   (b)ensure that both Y and X are aware that they are unable to spend unsupervised time together at any time;

   (c)that if any issue of concern arises, Y will be immediately removed from the vicinity of X and no further time will occur for that weekend.

5. That while X is spending time with either of the parties, the parties will ensure that X is wearing a communication device at all times which allows X to signal a silent distress alarm, and the parents’ numbers are to be on the device and able to be used by X, and X and the parent she contacts can communicate with this device outside the timeframes for telephone communication noted above at Order 9.

Exchange of Information

1. That the parents shall keep each other informed of a contact telephone number and addresses and will advise each other within forty-eight (48) hours when there is a change in such details.

2. That the parents will inform each other as soon as practicable in case of an emergency, serious illness, accident or hospitalisation involving the children following such an event, including the name and contact details of the treating medical practitioners and/or hospital.

3. That each party shall keep the other informed of the name and addresses of all medical practitioners, general and specific dentists and other professional persons dealing with the children.

4. That this Order shall be sufficient authority for the schools, medical practitioners, general and specific dentists and other professional persons dealing with the children to provide the parents any or all information requested by the parent at their individual expense, including but not limited to the health of the children, details of any medication or treatment, school reports newsletters, school photographs and order forms.

Counselling

1. That both X and Y are to receive counselling/psychological assistance through G Services or other agreed service or service nominated by the Department of Child Safety, Youth and Women, as required and recommended by the treatment provider, and with such treatment to occur for as long and as often as the counsellor/psychologist deems it to be necessary.

2. That the mother is to continue to attend counselling and to follow all directions of the counsellor.

3. That Mr F, psychologist, undertake privileged family counselling with Y, X and the parents, in whatsoever configuration of people he wishes to see, at all such times as recommended by Mr F, with each parent will be responsible for the costs of treatment for themselves and the child in their respective care.

Non-denigration

1. During the time the children are with each parent, that parent shall:

   (a)speak of the other parent their partner and their family members respectfully;

   (b)not question or interrogate the children about the time they have been spent with the other parent;

   (c)not denigrate or insult the other parent or their family members in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent, their partner or other family members in the presence of the children; and

   (d)not expose the children to adult issues including but not limited to matters relating to these proceeding or any other Court proceedings involving the parties.

Restraints

1. The parties are restrained completely from exposing the children to any sexual images, implements, books, magazines, videos or material.

2. That the parties are restrained from allowing or permitting Z born … 2004 to be present during the times that they spend with X, and if Justice returns to live at either party’s home, they must ensure that Z is not at the home whenever X is there and is not in the vicinity of the home.

Miscellaneous

1. That both parents are permitted to attend all school events, dance concerts and other events that X is involved in, and Y is permitted to attend on a supervised basis, with neither parent nor their partners to approach each other, or limit X’s ability to freely move between the families; both parents are to ensure that they do not do any action that would reasonably cause X to be embarrassed or upset.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Selleck & Albin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2083 of 2009

Mr Selleck

Applicant

And

Ms Albin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. In this matter, the parenting arrangements which are most controversial relate to what orders are in the best interests, on an interim basis, of X, who was born in 2008, and is now 12 years of age.

2. The issues which shape the Orders, and have shaped the Orders for some time, relate to conduct of X’s older brothers, but relevantly, at this stage, Y, of a sexualised nature, that came to the attention of both the Department of Child Safety, Youth and Women and other authorities.  As a result, this issue facilitated a change whereby X now lives with her father.  She attends a local school in Brisbane, whilst spending time with the mother under conditions, including strict supervision of any interaction, now, with Y.

3. The mother had indicated, at an earlier Case Management Hearing, an intention to move to Brisbane from City H, so as to facilitate better opportunities for her to spend time with X, as X seeks, and as is clear from the evidence from both parties at this stage.

4. But for the issue of Y, who still lives with the mother, of course; goes to a local school in Brisbane now and is 14 years of age; there would be really no impediment to the child X having extensive overnight time and holiday time with the mother.  On an interim basis, however, the effect of the continuing relationship between X and Y arising from the earlier criminal conduct engaged in, and how we move forward for a family that has been ripped apart by these very difficult allegations, are matters for trial.

5. I have indicated to the parties that I intend to list this matter for trial for three days as soon as practicable.

6. If the mother had not moved to Brisbane there could be very little practical capacity to increase the amount of time that the child X spends with the mother.  However, the mother has done so.  It seems to me appropriate (and the Independent Children’s Lawyer supports such an expansion) to increase the time that X spends with the mother, from after school Friday to before school Monday, extended to before school Tuesday if Monday is a public holiday, on an interim basis, until the trial.

7. The issue that then arises is whether and to what extent it is possible for Y to spend time with his sister, as clearly X has expressed a desire for this to occur, and the mother wishes to occur.  The father has – well, it might be putting it too high to say “supported”, but not opposed Y and X spending time together, provided it is strictly supervised.

8. Ms Armstrong, for the mother, has given details, on the evidence, of the configuration of the home that the mother is moving into, or has moved into, which includes:

   a)Y being in a separate part of the household, in his own bedroom;

   b)X, when she is spending overnight time, being in a separate bedroom, at the other end of the home; and

   c)the mother, soon to be joined by her partner, Mr B, and occasionally by his 14 year old son, who lives interstate, in the other bedroom.

9. The transcript will identify the concerns that I raised about the actual practical capacity for any parent to supervise interactions between two teenagers in the one household at night.  Unless the parent was asleep during the day and remained awake all night, in my view, it is not possible to provide the level of certainty of supervision that is required, on an interim basis, at this time.

10. I say, of course, that the Court might, after it has heard all the evidence and considered all the submissions, form a view that the risk of Y engaging with X in an inappropriate manner, as he had done earlier, is now so low as to not be a concern.  However, that is, as I say, a matter for trial.

11. In the circumstances, therefore, I am prepared to make orders for the time between X and the mother to increase, effectively on the same conditions as set out in the previous Order, with conditions relating to counselling and non-denigration and other restraints to continue.  The parties were broadly in agreement with the arrangement that essentially provides that the child Y not be in the home, if X is in the home, from 8.00pm until 8.00am the next morning.

12. Of course, on the weekends when X is not spending time with the mother, Y can remain in the home overnight.  On a weekend when X is spending time with the mother, Y will be required to leave the home by 8.00pm.  I understand, from the current submissions, for this short interim period it will be possible for Y to relocate for those evenings: Friday, Saturday and Sunday nights, to the home of the mother’s partner, Mr B.  I had no evidence from Mr B today, but I am prepared to accept the mother’s proposal has the consent of Mr B.

13. The inability to spend overnight time past 8.00pm to 8.00am the next day for Y will continue during the half of school holidays that X will be ordered to spend with the mother.

14. I am prepared for the line of sight distance – a dispute between the parties, the mother saying, I think, 10 metres and the father says five metres, in the circumstances, to make it 10 metres.  Clearly, if the mother sees any inappropriate behaviour by Y, 10 metres is a short enough distance to be able to intervene.

15. Ultimately, at trial, the Court will need to confront the long-term engagement of these siblings.  It will be almost impossible to prevent them having quiet conversations with each other for the rest of their infancy.  But these are matters best left to trial, to be considered in the whole of the evidence.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 6 May 2020.

Associate:

Date:  5 June 2020