Slade and McIntosh

FAMILY COURT OF AUSTRALIA

SLADE & MCINTOSH

[2012] FamCA 260

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Where the children have lived with the Father since late 2009 pursuant to previous final orders of the Family Court – Where the Applicant Father seeks the three children of the relationship live with him and spend supervised time with the Mother – Where the Mother seeks the children live with her and spend supervised time with the Father – Where the Mother makes allegations of sexual abuse against the Father – Where the Father ceased the children’s contact with the Mother upon his discovery the Mother was physically examining the children for signs of sexual abuse – Where the Father then made attempts to recommence the Mother’s time with the children but the Mother ignored such attempts – Alleged drug use by the Mother – s 60CC(2)(b) – Insufficient evidence to conclude the children are subject to abuse – s 60CC(3)(c) – Mother has failed to facilitate the Father’s attempts to co-parent – s 60CC(4)(a)(ii) – Children to live with the Father – Children to spend supervised time with the Mother – Father to have sole parental responsibility of the children.
APPLICANT:	Mr Slade

RESPONDENT:

Ms McIntosh

INDEPENDENT CHILDREN’S LAWYER:

Julie Ferguson

FILE NUMBER:

LEC

184

2008

DATE DELIVERED:

11 April 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

10 and 11 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Cotter-Moroz

SOLICITORS FOR THE APPLICANT:

Trenches McKenzie Cox

COUNSEL FOR THE RESPONDENT:

The Respondent Mother appearing in person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Ferguson, Solicitor of GJ Legal Solicitors

Orders

IT IS ORDERED:

That all previous Orders and Parenting Plans be discharged.
That except as otherwise stated, the Father have sole parental responsibility for the major long term issues of the children, F born … January 2005, M born … December 2005, and A born … March 2007.
That notwithstanding the provisions of Order 2:
(a)the Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her;
(b)the Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
That the Mother and Father shall:
(a)keep the other parent informed at all times of their residential address and landline contact telephone number;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.
That the parents authorise, by this Order, the schools or day care centres attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the parent’s cost).
That during the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) speak of the other parent respectfully;
(c)not denigrate or insult the other parent 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 in the hearing or presence of the children.
That the children shall live with the Father.
The Father shall be at liberty to take the children on a holiday of no more than

three (3) weeks at a time, no more than twice per year. In that event the Father shall notify the Mother at least three (3) weeks beforehand, in which case time with the Mother be suspended for the duration of the holiday.
That the Mother spend time with the children at the E Children’s Contact Centre (“the Centre”) for two (2) hours each fortnight (subject to availability) and that the Mother be permitted to bring her youngest child, E and oldest daughter, Y to the Centre. In the event that the Mother fails to spend such time with the children within six (6) months, then this Order is stayed pending Order 10.
The Mother is at liberty to provide the Father with a medical report from a treating psychiatric medical professional (who is hereby authorised to be provided with and had been provided with copies of all the Family Reports and

Dr U’s reports in these proceedings and comments on same in that medical report) that the Mother has parental capacity; is mentally stable and is capable of seeing the children unsupervised, then in that event, time with the Mother shall be reinstated pursuant to any or all of Orders 12 to 14 and 17.
That pending the Mother providing the Father with a medical report pursuant to Order 10 and the Father agreeing to reinstate time with the Mother, then the Mother shall spend time with the children in accordance with Orders 12 to 14 and 16 and 17.
That the children spend time with and/or communicate with the Mother as agreed between the parents and if they fail to agree, then as follows:
(a)for the first four (4) months on a supervised basis for two (2) hours twice a week at the E Contact Centre (subject to availability);
(b)commencing at the conclusion of the period referred to in (a), for a period of a further four (4) months from 10.00 am to
4.00 pm two (2) days per week on either Fridays, Saturdays or Sundays and the Mother may attend any pre-school that the child/ren may attend;
(c)commencing at the conclusion of the period referred to in (b), for a further period of four (4) months from 10.00 am Saturday to 4.00 pm Sunday and the Mother may attend any pre-school that the child/ren may attend;
(d)commencing at the conclusion of the period referred to in (c), for each alternate weekend from after school/pre-school on Friday to before school/pre-school on Monday during the school term and for half of the school holidays, for a maximum of one week blocks at a time.
That after the period of time as outlined in Order 12 and subject to Order 8, the Father/Mother shall be at liberty to take the children on holiday of no more than two (2) weeks at a time and no more than once a year, and in that event, the Father/Mother shall notify the Father/Mother at least three (3) weeks beforehand, in which case Order 12 is suspended for the duration of the holiday and the Father/Mother is to have make-up time.
That upon the expiration of twelve (12) months of the date hereof, the children spend time with the Mother and the Father as follows:
(a)Christmas Day from 10.00 am to 6.00 pm in even numbered years with the Father and in odd numbered years with the Mother;
(b)on the birthday of each child (with the parent they are not living with on the day) (including every child):
(i)if a school day, from after school until
7.00 pm;
(ii)if a non-school day, from 1.00 pm until
6.00 pm;
(iii)with the parent with whom the children are to spend time to be responsible to collect and return the children;
(c)with the Father on Father’s Day (if the children would otherwise be with the Mother) from 9.00 am until 5.00 pm, with the Father to be responsible to collect and return the children;
(d)with the Mother on Mother’s Day (if the children would otherwise be with the Father) from 9.00 am until 5.00 pm, with the Mother to be responsible to collect and return the children.
That the children shall communicate with their non-resident parent on the telephone at such times as a child reasonably requests but otherwise between 5.00 pm and 5.30 pm on each Sunday, and Tuesday and in relation to such communication, each parent shall:
(a)ensure that the children are available to receive the telephone call;
(b)arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call from the parent;
(c)ensure that the children have privacy during the conversation.
(a) That until the expiration of twelve (12) months and unless otherwise agreed to between the parties, all handovers occur at the E Contact Centre, with the Father to deliver and collect the children.
(b)That after the expiration of twelve (12) months, the children be delivered and collected at their school in accordance with these Orders, or if there is to be a handover outside school times, it should occur at the E Contact Centre unless otherwise agreed to between the parties.
(a) That the children shall spend time/live with their parents for school holiday periods as follows:
(i)being the first half of the Autumn, Winter and Spring school holidays in even numbered years with the Father and in odd numbered years with the Mother; and
(ii)the second half of the Autumn, Winter and Spring school holidays in odd numbered years with the Father and in even numbered years with the Mother;
(iii)as to the Summer school holidays, the Mother shall spend alternate weeks from 10.00 am Sunday to 4.00 pm the following Saturday for half the school holiday period, commencing with the first Sunday of the Summer school holiday period.
(b)For the purpose of these Orders, the school holiday time shall commence:
(i)when a parent’s time falls in the first half of the holidays, from after school on the day the school term finishes and conclude at 4.00 pm on Sunday;
(ii)when a parent’s time falls in the second half of the holidays, from 4.00 pm on the second Sunday and contact shall end at 9.00 am on the day the school term commences.
(a) That an injunction issue and the Mother be restrained from using or attempting to use any surname for the child/ren other than the surname McINTOSH-SLADE either informally or formally for any purpose whatsoever.
That an injunction issue and that the Mother be restrained from:
(a)removing or preventing, F born … January 2005, M born … December 2005 and A born … March 2007, from living with the Father or remaining in the care of the Father, other than in accordance with these Orders;
(b)removing or allowing, F born … January 2005, M born … December 2005 and A born … March 2007 to be taken from … D Street, E, New South Wales or any other address where the Father may reside;
(c)facilitating or permitting, F born … January 2005, M born … December 2005 and A born … March 2007, to be taken by any other person to live in or occupy any other residence other than the Father’s residence or remove the child/children from any school or pre-school, other than in accordance with these Orders;
(d)questioning the children or any of them inappropriately about the Father touching them;
(e)discussing with the children or any of them matters arising in relation to the proceedings in this Honourable Court including but not limited to the reasons for the current parenting arrangements or attributing blame to the Father in relation to the current parenting arrangements
The Independent Children’s Lawyer be discharged.
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Slade & McIntosh 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 BRISBANE

FILE NUMBER: LEC 184 of 2008

Mr Slade

Applicant

And

Ms McIntosh

Respondent

REASONS FOR JUDGMENT

I am giving my reasons for judgment at an early stage, since I believe the parties are entitled to know my decision as speedily as possible. I indicate that the applications are on the part of Mr Slade as father of three children, being F born in January 2005; M born in December 2005; and A born in March 2007.
The mother is the respondent to the application, and she is Ms McIntosh. The parties had about a four-year history of cohabitation, and they separated in 2007, early 2008. Thereafter the children for a period resided with the mother, then went to the father, and then went back to the mother. And, in November 2009 an application was heard by Jordan J, who has now retired, in Brisbane for a period of four or five days. I have had the opportunity of reading Jordan J’s reasons for judgment, and it is classic Jordan J; in-depth, very wide, very clear and very supportive and compassionate, particularly with regard to the mother’s attitude.
He removed the children from the mother and placed them in the care of the father, on evidence which was put before him, which he sets out quite clearly in the reasons for judgment, what caused him great concern. He was mindful of the fact that the removal of the children from the mother, who had been their primary caregiver – perhaps “caregiver” is a word that I should not bandy around too much, since he was greatly concerned about her ability to look after the children – would cause a great deal of trauma. It did.
As a direct result of his concerns, he put into force and effect a scheme of supervised contact for a period of approximately four months, where the mother was entitled to have contact with the children and thereafter ever-increasing periods of unsupervised contact.
The contact appeared to go reasonably well insofar as Ms Slade Senior was concerned; that is, the paternal grandmother. She believed that it was going very well, until one stage when she came to the view that the mother, as a result of a complaint by one of the children, had been physically investigating the child with a view to ascertaining whether or not the child had been sexually abused by the father. She became somewhat concerned about this, and as a direct result of that, the father stopped the children having contact with the mother.
The mother had, for some time previous to this, been complaining about the children being abused by the father. At that stage, it was alleged that the father was affecting A, which is set out in the affidavit of the mother filed 17 October 2011, and that was in May 2010.
Since that time, the mother has had physical contact with the children on two occasions, solely, as I understand, as a result of it being necessary for the children to see their mother for the purposes of a family report. Two occasions, when she saw them very briefly.
The father has sought in this application before me now that he have the children residing with him, as they have been since late 2009, and that the mother have supervised contact. The mother on the other hand, in her response, seeks an order that the children reside with her and that the father has supervised contact. She says “supervised” because the father is guilty of an abuse of the children.
This allegation looms particularly large in the mother’s case, and in fact virtually the only evidence that she has put before me is the affidavit of 17 October 2011, where during her submissions I asked her whether they were the allegations of abuse, and she said yes, they were the only ones. I have looked at them and they seem to be allegations that the children, M (see page 3 of the affidavit, 10 September), and this was of course 10 October 2009. This was before Jordan J’s decision. Jordan J was seized of the allegations of sexual and physical abuse of the children and neglect, but not to the extent that I have been informed of it.
And I have looked at the affidavit and it appears to me that basically the allegations are, insofar as physical abuse is concerned or sexual abuse, about M. There have been allegations of inadequate clothing, particularly insofar as M is concerned. That there are allegations of A sleeping with the father. There have been allegations about lack of food and M in particular, not wearing undies, that there was poor clothing, and there are allegations that they have insufficient food. I refer to the affidavit and indicate that all of these are the ones the mother relies upon.
She seems to have, with great respect, ignored the evidence of the paternal grandmother wherein the paternal grandmother indicated that the child complained to her about the physical investigation of her by the mother, to the paternal grandmother. The mother indicated to me that the child was not telling a fib, but it was the paternal grandmother who was telling the fib and was in fact conspiring with the father to paint her in a bad light. As I pointed out to her, if in fact I accepted what the child said, that it would appear on her definition that not only she is guilty of sexual abuse, but the father as well. She did not put forward anyone else who could look after the children.
I make it quite clear at this stage that even taking into consideration what the mother has said, her conduct is such that it concerns me a great deal of whether she puts the children first or her self. Since May 2010 she has not sought the assistance of this Court to enforce the order which she says she is entitled to, to have unsupervised contact with the children. She has not sought it on one occasion. On two occasions, offers were made by the father for her to resume contact with the children. One was a letter dated 7 May 2010 which did not come to her notice until later on that year, when it was brought to her notice by Ms Z, a family consultant, she not having seen it before.
The letter is annexed to Ms Z’s report dated 7 June 2011, the date of the letter is 7 May 2010. In that letter, the father indicates his complaints about the mother and he says:
…
I have attempted to have supervised contact reinstated at the contact centre, until these concerns have been resolved;
…
he refers to four concerns previously –
[Ms Q] –
and I think everybody realises that Ms Q was someone in authority in the contact centre –
has informed me that this is not possible, unless you agree to it. If you will agree to supervised contact continuing at the Contact Centre, can you please inform them of this ASAP so your contact with the children can continue ASAP.
…
The mother ignored this letter. Previously, the father offered unsupervised contact to take place so long as the mother would undertake not to investigate the child physically in an endeavour to prove what she believed to be sexual and/or physical abuse on one or all of the children. She refused this. She has not given me, in my opinion, any adequate explanation as to why (1) she refused this offer; (2) why she did not take steps to have the Court exercise its authority that it does have in relation to its order. She said she thought of doing a contravention, but did not get around to it. She did not say she was going to get around to it. She thought about it, but she did not get around to it. She has, on other occasions, said she will do certain things and has not done it, in relation insofar as to an appeal against the order of Jordan J. That went on for about 12 months, she indicated to Ms Z that she was thinking of an appeal, that she was seeking legal advice. She did not get around to it.

There are so many things which she does not get around to do, and I do not need to set them out in chapter and verse other than to say that it concerns me that she puts forward her own views, that is, that the children have been sexually and physically abused, and did not come to the Court. She allegedly went to the police, well, she did go to the police and complained about it. They have done nothing about it, she says. She has gone to DoCS, and she says that she did that frequently. According to my reading of the DoCS material, I cannot see that she went other than from that one occasion after about mid-July last year. She said she went on more frequent occasions, and I am not saying that she is wrong but there is no notation to that effect in the DoCS report, there is no notation in the police report– subsequent until April, last year. I am not sure about that – that she has made any complaints.
She has made these complaints, up until that stage the complaints were investigated. I note that there have been frequent notifications to the police and to DoCS prior to 2009 about the ability of the mother to adequately look after the children and I refer to those which are set out in the reports given to me and which are exhibits 6 and 7, they being handed to me after I stood down.
I have to consider the welfare of the children. The mother wants me to do that. She says that on her evidence she is more than satisfied that the children are being physically abused. I cannot be. She refers to the statements made by the children, she emphasises that this is the only evidence she has. She has told me that she has a hard drive which will prove her statement to me, and I think on her sworn evidence that the husband was violent towards her, showing extreme bruises. She has had this hard drive for four years and it has only been in the last couple of months that she has endeavoured to recover or retrieve the contents of that hard drive since, as it has been readily conceded by the father, he has in fact wiped what was on that hard drive.
She is always going to do something, but does not quite do it. If in fact she was as concerned as what she has said she is, she would have come to court. She would have come to this Court and said, “This man has refused my rights,” and I say that advisedly, “My rights under an order for contact of my children. I want it enforced.” She did not do so. She has not seen her children, other than on three short occasions, in over two years. And that in itself is quite staggering, as far as I am concerned.
She now says that insofar as the headings which Jordan J set out in his reasons, they are still a concern to me. Dr O was of the view that the mother was gravely addicted to cannabis; she says she is not. He is of that view. Dr U is concerned about that. Mr S, a family consultant in two of his reports emphasises what he considers is essential that she seek remedial treatment; that she seeks support from anti-drug areas, that she attends upon rehabilitation. She has not done so. She has not done anything, and in fact Jordan J in his judgment to which I have referred – in notes, which I do not like notations, I must confess, but he does refer to it in the body of his judgment:
E.It is the view of the Court that those objectives [to which she refers hereinbefore me] are only likely to be achieved if the Mother obtains proper medical treatment and therapy for her drug and health problems.
She has not done so. If she has done, she has not put any evidence before me to show that she has done it. He goes on further to say:
F.The Mother’s capacity and willingness to comply with recommended treatment programs is likely to have a direct bearing upon her capacity to enjoy a meaningful relationship and substantial time with the children in the future.
She has not done it. How could I possibly say that it is in the interests of the children to either (a) be put into the possession of their mother and the father have supervised contact; or (b) that she has unsupervised contact when she does not comply with the recommendations – I do not say orders, but recommendations – that her case would be strengthened tremendously by her doing certain things? And as I have said, if she has done it she has not told me anything about it, and I think that is a great tragedy.
I have, of course, to look at the provisions of section 60CC of the Act, and I am of the view that, save for two of those subsections and a section, that it is unnecessary for me to particularise each and every one of them. I will, however, refer to sections 60CC(2)(b) which is:
2(b) the need protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence -
This is the mother’s case: that, in fact, the children are subjected to or exposed to abuse, neglect or family violence. I do not think so. I cannot be persuaded on the evidence before me that there is sufficient evidence there to make me satisfied that the children have been exposed to abuse, neglect or family violence insofar as the father is concerned. Insofar as section 60CC(3)(c) is concerned –
the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent –
I am satisfied that the father has attempted to do that. On two occasions he has offered to reinstate some form of contact, whether it is supervised or not supervised, upon the mother undertaking. She has failed to take advantage of that. That, in itself, one would think does tend to suggest that the mother does not put the children first but her own views first.
Insofar as 60CC(3)(f) is concerned:
The capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs –
I do not believe that the mother is capable of first of all supporting, or to provide, for the emotional needs of the children. She has what I consider to be a rather a bizarre attitude towards, generally, everybody involved in this case. She is of the view that her legal advisors in the trial before Jordan J were in fact in cahoots with the father. She is of the view that the Department of Community Service and the police department are, in fact, working against her, and that, in myself, is not in the best interests of the children or even of herself in particular.
I must, of course, look at those matters which have been set out in 4; section 60CC(4). I must consider the extent to which each of the children’s parents have fulfilled or failed to fulfil their responsibilities as a parent. I believe the mother has, unfortunately, failed in this case. She professes the fact that the interests of her children are foremost, and yet she has done, as far as I am concerned, an insufficient amount to try and get something done for them. She says she has been to the police, they ignore her. She says she has been to the Department of Children’s Services; they either ignore her or do not do anything about it. She does not come to the court. I cannot get over that.
In particular – section 60CC(4)(a)(ii); that she has failed to spend time with the children. She said it is not her fault, but it is, with respect, if we talk about fault, and there should not be fault in this court. But it is, as far as I am concerned, her failing to attempt to retain or resurrect a relationship between herself and the girls that she has really made a mess of - an absolute mess. And as a result there – I will take into consideration those matters to which I have referred, and the fact that the children have been with the father since December or thereabouts 2009 – that there is no evidence to suggest that they, other than reaching their milestones – one is at school, has gone to kindergarten, and they are all doing reasonably well. There are the notations at the back of the husband’s affidavit.
I could not, in any way, interfere with the present situation with the children. Insofar as contact is concerned, there must be contact and she herself – the mother, herself – has recognised that if there is supervised contact she must avail herself of it. The children do have a relationship with her. The more she stays away, the less that relationship will be. There has been put before me by the applicant a suggested draft order. I have looked at that order, there is an amended summary. I have looked at that, it is at the back part of the outline of applicant’s case and I have read it and I consider that it is – as amended – is fair and reasonable. I do not, as I have said, believe in notations and I will not make any.
In the draft order placed before me the father has sought an order that should the mother fail to comply with certain orders made, that she provide a medical report from a treating psychiatric medical professional. I believe that it is important in this case that the mother as indicated by Jordan J and now indicated by myself, do attend for some psychiatric treatment. Her bizarre conduct is such that I feel somewhat concerned for her mental health and I believe that it is in the interests of not only of herself, but in the interests of the children that she do seek such medical advice. Whilst I do not feel constrained to order it, it may be that upon reading these reasons and as well as re-reading those of Jordan J’s, the mother will do something in an endeavour to advance the opportunity of spending unsupervised time with her children.
As mindful as I am of the High Court decision in Rosa, it appears to me that the orders which have been put before me indicate there will be significant and substantial contact to take place between the children and the mother and that such contact will increase subject to the mother’s taking remedial steps in relation to her conduct. Further, I consider that the contact is reasonably practicable to take place since the parties live quite comparatively close to each other.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 11 April 2012.

Associate:

Date: 11 April 2012

[2012] FamCA 260

11 April 2012

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies