Sloan and Stephenson
[2011] FMCAfam 771
•9 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SLOAN & STEPHENSON | [2011] FMCAfam 771 |
| FAMILY LAW – Oral application for further interim parenting orders – failure by the Mother to comply with Court orders and referrals for therapeutic assistance – failure by Mother to participate in proceedings. |
| Family Law Act 1975, ss.68B, 121, 13C, 69ZW, 65F, 60CC, 60BAA, 60CA |
| Sloan & Stephenson [2010] FMCAfam 1078 |
| Applicant: | MS SLOAN |
| Respondent: | MR STEPHENSON |
| File Number: | PAC 3440 of 2010 |
| Judgment of: | Harman FM |
| Hearing date: | 9 February 2011 |
| Date of Last Submission: | 9 February 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 9 February 2011 |
REPRESENTATION
| Solicitors for the Respondent: | Cox West Lawyers |
ORDERS
I grant leave to Mr Stephenson to make an oral application for further interim parenting orders in accordance with his response filed 2 August 2010.
I discharge orders as to time and living arrangements for the child, [X], born [in] 2010, including the orders 28 September 2010.
Pending further order, [X] shall spend time with her mother:
(a)each alternate weekend from 10 am Saturday, till 6 pm Sunday;
(b)each Wednesday from 10 am until 4 pm;
(c)at all other times, [X] shall spend time with and be in the care of her father.
Within 48 hours each parent shall contact the [Suburb omitted] Children’s Contact Service and shall then arrange and attend the first available intake appointment with a view to using that service for changeovers whenever possible and upon acceptance by that service for the purpose of changeovers, all changeovers that can be facilitated through that service shall occur through that service.
Until accepted by the [Suburb omitted] Contact Service, and/or on any occasion when the service is not available, changeovers shall occur at the front foyer of the [Suburb omitted] Police Station
I note that an order for changeover at a police station has been made:
(a)as there are apprehended domestic and personal violence orders in force naming Ms Sloan as a defendant; and
(b)for the mutual protection of each parent from allegations by the other; and
(c)with a view to each parent restraining their behaviour and language appropriately.
Each party is hereby restrained pursuant to s. 68B and s.121 of the Family Law Act 1975 from communicating with the other, or any member of the other’s household or extended family via Facebook or any other social networking site, and further, each party is restrained on any such social networking site from referring to these proceedings, the other parent, or any member of the other parent’s household or extended family, or to any issue or allegation raised in these proceedings, or indeed the existence of these proceedings.
I order the preparation of the family report in accordance with the usual minute and to address the matters set out therein.
I will list these proceedings for further mention and directions before me 9.30 am, Wednesday 15 June 2011.
Subject to the family report having been released in accordance with my request, each parent is to ensure that they have read and fully considered the report and any recommendations contained therein prior to the next listing and to attend in person on that occasion whether legally represented or not.
Grant liberty to each of the parents and the Independent Children’s Lawyer to restore the matter to my list, if possible by telephone link in chambers, but if not, in person, in the event of any allegations of non-compliance with the above interim parenting orders, any difficulties otherwise encountered in compliance with previous orders, particularly regarding attendance with services including, but not limited to [Organisation omitted], or in the event of any fresh matters of urgency relating to [X]’s welfare and I direct that neither party is to file any further application in the case or contravention application prior to having relisted the matter.
In the event that the above liberty is utilised, then the party causing same is to ensure that the other party and the independent children’s lawyer is advised forthwith of any listing date, as well as the basis upon which the matter has been relisted, and the orders or directions that would be sought on the next occasion.
I note the previous orders pursuant to s. 13C which require each parent to attend appointments with [Organisation omitted] remains on foot and that each parent will need to address their compliance or absence thereof with those orders on any future listing and at final hearing.
I order a transcript of these reasons to be placed on the court file.
I note that the first period of weekend time pursuant to the above orders will commence Saturday 19 February.
IT IS NOTED that publication of this judgment under the pseudonym Sloan & Stephenson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3440 of 2010
| MS SLOAN |
Applicant
And
| MR STEPHENSON |
Respondent
REASONS FOR JUDGMENT
These proceedings involving interim parenting arrangements for a young child, [X], who is not yet one year of age, having been born [in] 2010.
These proceedings have, in light of [X]’s age, a regrettably lengthy and protracted history.
The matter was commenced by an application filed on 23 July 2010 and which was returnable on 3 August. At that time an independent children’s lawyer was appointed.
A child dispute conference also occurred and after the assistance of an ably qualified family consultant, a number of orders were made which had the effect that [X], who was at that time in her father’s care, was returned to her mother’s care and orders made for [X] to spend time with her mother, when not in her father’s care, and to spend time with her father from 10 till 3 each Saturday, Tuesday and Thursday.
A number of other orders were also made, particularly orders pursuant to s. 69ZW of the Act which have led to a number of further appearances in the matter and ultimately the published decision of Sloan & Stephenson [2010] FMCAfam 1078 regarding the exercise of that jurisdiction.
The time arrangements that were put in place, whilst not expressed as being conditional upon the balance of extensive orders made on that day, did contain a number of orders which are germane to the listing of the proceedings today and the orders that will be made today. They had included the following orders:
a)That the mother is to ensure the father is advised of her residential address at all times and that the father be injuncted from attending at that accommodation for any purpose.
b)That the mother was to reside at the premises at which she was then residing and shared with a person known to the court only as Mr Q and that if leaving that accommodation, the mother was to live at the home of her parents at [address omitted] and not otherwise.
c)In the event that the mother was, for any reason, unable to reside at her parent’s home at [Suburb omitted], but leaving her present accommodation, then she was to ensure that the proceedings were relisted on her instigation on 72 hours notice.
d)That a referral was to be made by a family consultant to the Department of Human Services to enable the mother to participate in the Brighter Futures Programme and indeed, one of the recommendations in the child dispute conference memo was that this programme would provide some substantial benefit to Ms Sloan. It was required that the child be in her care for the referral to be given effect.
e)Finally, that each of the parents attend at and complete services and programmes offered by a number of agencies as nominated by the family consultant and in the case of Ms Sloan, that being a referral with respect to allegations of drug use, a referral to Centacare Family Support Services, and a referral to complete a program also through Centacare of keeping children safe.
The orders in relation to Centacare were subsequently discharged as it seemed clear at that time, and on the subsequent listing of the matter, that Ms Sloan was being somewhat overextended by the number of referrals that she was required to attend, particularly having the care of two young children, as Ms Sloan has a son who lives in her full-time care as well as [X].
The amended order made on 28 September 2010 required that both parents then engage with [Organisation omitted] at [Suburb omitted].
Since that referral on 28 September 2010, these proceedings had been listed now on half a dozen occasions, each at the court’s own motion as a consequence of non-attendance at appointments or not following up appointments made for Ms Sloan with [Organisation omitted]. I hasten to add at this point that there would appear to be less contention regarding Mr Stephenson’s engagement and involvement with that service and no notification has been received by the court - which notification is requested and required by the terms of the order made pursuant to s. 13C - to suggest that Mr Stephenson has failed to attend any appointment.
The proceedings were last listed a little over a week ago on 1 February 2011. On that date, Ms Sloan did not appear. Ms Sloan does appear today and a further affidavit has been filed by Mr Stephenson in the proceedings.
It appears clear and apparent and I have no reason to doubt and I do in fact accept from Ms Sloan that she has had a number of difficulties with her eldest son experiencing significant health problems and that has led to periods of time attending hospital with him, short admissions to hospital and other difficulties.
There are a number of concerns beyond non-attendance at court however, and principle amongst those is non-attendance to follow up any of the therapeutic referrals that have been made, whether they are occasioned by the illness of this elder child, [V], or otherwise.
Mr Stephenson’s evidence otherwise indicates that notwithstanding the limited terms of the orders that were initially made on 3 August, that [X] has, indeed, spent substantial periods of time in his care. That is somewhat unusual having regard to the allegations that were raised by Ms Sloan at the time that these proceedings were commenced by her as to concerns she had in relation to Mr Stephenson including concerns as to his alleged violence towards her although, interestingly, the initiating application had indicated clearly that there was an apprehended domestic violence complaint by Mr Stephenson against Ms Sloan which had been due to be heard in the Local Court of [Suburb omitted] on 27 July 2010.
Since that time - and it is tendered before me today - an order has been made on a final basis by the Local Court at [Suburb omitted] being made on 24 August 2010. That order imposes prohibitions upon Ms Sloan as the defendant and protected persons are Mr Stephenson and the child the subject of these proceedings, [X] as well as a child of Mr Stephenson’s from a former relationship, [Z].
The terms of the Apprehended Domestic Violence Order which remain in force until 23 August 2011 are that Ms Sloan is not to assault, molest, harass, threaten, or otherwise interfere with any of the protected persons; not engage in any conduct that intimidates them; not stalk them; nor approach the school or other premises at which any of the three protected persons from time to time attend for the purpose of education or child care.
I am also told – and have tendered before me today – a copy of a provisional personal violence order which has now been issued on a complaint by a police officer on behalf of Mr Stephenson’s partner, Ms D. That complaint is yet to go to court and is in fact listed before the Local Court at [Suburb omitted] on 21 February 2011.
The complaint suggests, in terms that I will not transcribe, that the protected person and Ms Sloan came upon each other on 1 February 2011 at the [omitted] Outlet and that at this time a number of comments were alleged to have been directed by Ms Sloan to Ms D in what could only be described as fairly foul and inappropriate language for a public place, let alone for a woman of 26 years and mother of two children. There is some suggestion that the complaint is doomed to failure but that is a matter for another court in another place.
The other aspect of the affidavit filed today by Mr Stephenson is the length of time, as I have indicated, that this child has spent in his care, notwithstanding the complaints and criticisms not only as to violence, but allegations as to Mr Stephenson’s inability to care made by Ms Sloan, an alleged lack of interest in the child and concerns expressed in relation to drug and alcohol use all being concerns raised by Ms Sloan.
Mr Stephenson’s evidence suggests that [X] has been in his care for periods of up to a week at a time, commencing from 8 October to 11 October and consistently in a pattern of far more extensive time than I had ordered, and was urged by Ms Sloan, in light of the allegations and criticisms she raised, to order. In fact [X] has been in Mr Stephenson’s care continuously since 4 December to today. Again, it is suggested that this is consistent with Ms Sloan being required to attend to health issues with respect to [V].
Whether that is so or not, and I do not particularly doubt it for the purpose of these orders, I note that the effect of the time periods that have been in place during which time this matter has been relisted before the court on a number of occasions as a consequence of Ms Sloan not following up on appointments and referrals to services, as recommended pursuant to s. 65F of the Act by a family consultant as somewhat necessary to assist this parent, that [X] has indeed spent significant proportions, including since shortly prior to Christmas till now, the majority of her time, in her father’s care.
Having regard to all of the above, I am certainly persuaded that I should and must review the interim parenting orders that are in place at the moment.
From the time that the matter first came before the court I have been anxious to adopt a process by which these parties have not been moved towards litigation but have, instead, been offered the opportunity of therapeutic assistance through community based services as a means of seeking to strengthen their parenting skills, improve the facilities they can offer as parents to their child, to improve their ability to communicate and cooperate, and to otherwise seek to address the matter, not only in a less litigious fashion, but in a fashion that would have some potential for producing a sustainable and long-lasting outcome, particularly as this child is so young; not yet one year of age.
[X] has two parents who no doubt will be and want to be in her life for a very long time and her life will be dramatically disadvantaged by the inability of her parents, should that continue to be the case, to cooperate, communicate, or at times, (based on what I have read in the domestic violence complaints and the affidavit material as to the conversations that have occurred between the parents and others at changeovers and in text messages, largely relating to comments in messages by Ms Sloan) act in a manner that is adult and mature.
As this is a parenting matter, I am required to consider the objects and principles of the legislation, the factors as to what is in a child’s best interests pursuant to s. 60CC and issues regarding practicality pursuant to s. 65BAA(5).
In relation to practicality, these parents now both live in the same suburb. Notwithstanding how close they live together, the closeness of their relationship with each other has done nothing but diminish.
The capacity – present and future – of these parents to implement any arrangement that will operate on a sensible and civilised basis continues to concern me. That is the basis upon which, no doubt, the family consultant had suggested community based interventions, and the basis upon which I was happy to order them in the hope that everyone would engage with services, would receive some benefit, and develop some insight as a consequence and be able to better parent this child cooperatively. It is impossible for those processes to operate or any therapeutic benefit to be received when they are not in fact commenced at least in relation to one parent Ms Sloan.
The current or future capacity of these parents to communicate is problematic.
I am highly concerned as to the impact on the child of the present arrangements. This child is not yet one and she has had nothing in her short life that could be described as a stable and settled arrangement. Whether that is for good, explicable reasons or not, need not concern me. What is manifestly clear is that this child has been horribly disrupted for some months and that nothing is occurring through the orders that this court has made, and through a failure by Ms Sloan to take up referrals which, as I indicated, whilst not conditions of the orders were clearly intended to operate in unison with the time arrangements.
As regards the primary considerations in s. 60CC of the benefit of the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, I am concerned as to the behaviour this child is exposed to, particularly at the changeovers that are referred to in Mr Stephenson’s most recent affidavit. As to the language that is used thankfully this child being pre-verbal she cannot understand. No doubt the various adults, neighbours, passers-by, members of the community, in the street or at these shopping centres when these events transpire are horrified.
Thankfully this child cannot understand the words, but no doubt can pick up very clearly the tone of voice and the manifest hostility that must be present. More concerningly, that type of behaviour, that inability to restrain ones emotions, the inability to recognise how to behave appropriately in any given circumstance, causes me some real concern as to parenting functioning and parenting capacity of Ms Sloan.
In relation to the additional considerations, views are not relevant.
There is very little material before me as to the nature of this child’s relationship with any person, but I note by reference to social science literature on the topic that this child is at an age where she should manifestly have some stability and as she is very much in the formative attachment phases of her life.
Material that is available as a consequence of government-funded research and reports and as a consequence of a desire by some quarters to review the operation of the 2006 amendments, is of some particular assistance in a case such as this in providing a useful summary, if nothing else, as to the types of arrangements that would benefit a child of a particular age and particularly the type of arrangements that benefit children in this very delicate and vulnerable age group.
It is suggested by that research, particularly the synopsis of selected reports titled “Post-Separation Parenting Arrangements and Development Outcomes for Infants and Children” under the authorship of Smyth, Kelaher, Wells, Long and McIntosh that:
Shared care at one night per week or more was associated with an added degree of vulnerability relative to primary care in two areas of emotional regulation: irritable behaviours, and general monitoring of proximity of the primary carer.
Attachment theory would predict this set of outcomes for infants who experience regular, prolonged disruption to care-giving by the primary care. High frequency or continuing behaviour such as being fretful and difficult to soothe when separating from the parent, crying, seeking out the primary carer and being unable to settle to play alone are reliable indices of stress in the context of the parent-child attachment.
Attachment studies over several decades show that repeated and prolonged absence from the primary caregiver creates for the young infant a disruption in sensitive response from that primary caregiver, which is uniquely stressful. At this phase of cognitive development, repeated separation is both beyond the infant’s control and beyond their cognitive ability to predict, comprehend or resolve. The resulting stress and distress is typically expressed on reunion with the primary caregiver, through irritable, unsettled, angry, or ambivalent behaviours, and over time, through psychosomatic symptoms. Across cultures, the causal relationship between sensitive, prompt and reliable responses to the infant’s attachment signals, attachment security and regulated emotional responses by the infant to stress are well documented.
Whilst two or more secure attachments are associated with competent outcomes in later childhood and are preferable to one, and certainly to none, Cassidy ... summarises mother-infant attachment studies ... showing the importance of first consolidating security with a primary caregiver in the young infant’s attachment hierarchy:
‘The research that is available suggests that when a child is securely attached to one individual and insecurely attached to another, the child behaves more competently when the secure attachment is with the mother than when it is with the other attachment figure.’
The difficulty I have in this case is that the orders that were made on 3 August, at a time when this child was about six months old, were intended, with the supports and the referrals that were put in place, to avoid exactly the disadvantages of deprived attachment and neurobiology referred to above.
Those have not been possible however and very unstable arrangements and frequent changes have occurred. The disadvantage of this is perhaps most succinctly summarised in the same report in quoting Mr S as follows, and in discussing the need for stability and primary care arrangements for infants under two:
You are simply making the infant’s job harder. The infant’s job is to try and organise their behaviour to make the world be a predictable and understandable place where they can get their needs met and they won’t be too stressed. Their job is to try and keep their arousal modulated. They’re unable to do that by themselves. Their job is the easiest when things are regular, predictable, and responsive to them. Their job is harder the more transitions they have to deal with, the more uncertainty there is.
The difficulty with the arrangements that have been in place probably since August, but certainly since October, are that they are anything but regular and settled and there would not appear to be any solution in sight in the short to medium term future if the orders stay as they are.
The likely effect of any change has some real relevance to this case. The likely effect of change is twofold. Firstly, it will, to a large extent, at least bearing in mind the last two months of arrangements, reflect that which is actually occurring for this child. Secondly, it will provide, in the short term before this matter can have a family report prepared and moved towards - if that is what is going to be required; a hearing - a more stable, settled arrangement.
Practical, difficulty, and expense is not manifest although issues are being raised by Ms Sloan regarding the undesirable nature of changeover, Certainly from that which has been read in the materials tendered and referred to, as well as the affidavit material, it would be suggested that the changeovers are anything less than unpleasant for anyone who is foolish enough to be within earshot of changeovers, let alone those actually involved in them. It is suggested by Ms Sloan the changeover should move to a contact centre.
The website for the Contact Centre Association suggests that there is little or no delay at present in intake and use of the [Suburb omitted] Contact Service for changeovers as opposed to supervised time, and accordingly, I propose to make an order moving changeovers to that venue. That may create some more practical difficulty for these parents in light of their transport difficulties and cost, but hopefully will at least produce a smoother arrangement for changeover.
Capacity is an issue that is untested with respect to either parent but as I have indicated, I can no longer have significant concerns based on Ms Sloan’s criticisms of Mr Stephenson’s care of the child bearing in mind the periods of up to and over a week that she has spent in his care in the last few months at Ms Sloan’s request and instigation.
The maturity, sex, lifestyle and background of the child has some relevance in that this child is incredibly young and immature, highly vulnerable, entirely dependent upon those responsible for her care to meet her needs and to do so appropriately. She depends on others for her existence let alone her sustenance and accordingly arrangements must be in place that provide some real stability.
Neither party has indicated in their material they have Aboriginality or Torres Strait Islander background is of relevance.
In relation to family violence, there are allegations by each parent against the other. In relation to family violence orders, there is now a provisional order placing prohibitions upon Ms Sloan as regards Mr Stephenson’s partner and a final order, which I must take into account in the proceedings as it is a final order, for the protection, not only of Mr Stephenson but also this child, although the complaint upon which that order is based is not before the court and the basis upon which the order was made, i.e., undefended, by consent or following a final hearing, is uncertain.
As to whether it is preferable to make the order that will less likely lead to future proceedings, that again has some relevance. These proceedings have been listed on not less than six occasions purely to deal with non-compliance by Ms Sloan with orders for therapeutic referral. Again, whether there is an explicable and plausible explanation for such non-attendance or not, is not my concern for today’s purposes but more the fact that the services which this child needs her parents to receive are not occurring, at least as regards Ms Sloan, and as a consequence the benefit that this child would derive from support and improvement in parenting are unlikely to manifest themselves any time soon in Ms Sloan.
I propose to now seek to advance this matter through the court’s pathway as has not occurred to date. Since August, a period now of nearly six months, little or nothing has happened with the matter and that is because the therapeutic referrals have not been taken up by Ms Sloan, again, possibly for perfectly explicable reasons. But in any event, the time has now come when this matter must move forward.
I have some concern in taking that path and moving the matter towards trial. Section 65F requires that the court not deal with and determine a case until there has been some form of counselling which, as the only reference to counselling in the Act is the referral to family counselling (and the section must thus and of necessity, include or be a referral to family counselling such as the present therapeutic referrals).
I have done all that is within my power to use this Court’s orders and authority as an instrument for change for these parents and, through them [X], in the hope she will be as well parented as possible and so that the case can ultimately be determined by reference to enhanced, function parents rather than depleted parents. Those attempts and referrals have been made in this case and certainly have been followed through by Mr Stephenson.
Whilst there is potentially an issue with procedural fairness in re-determining the matter, I note that procedural fairness applies to both parties and that in any event, s. 60CA requires that this court treat a child’s interests as paramount in all that it does, not only substantively, but procedurally, and some step towards a conclusion to these proceedings by moving the matter towards some determination (which, whilst the parties have had ample opportunity to achieve that by consensus, has not occurred), must now follow. In the interim [X] deserves to be safe and in stable arrangements. Those arrangements are presently with Mr Stephenson.
Accordingly, I propose to make orders for preparation of a family report and to bring the matter back in accordance with the court’s usual policy once the report is available, to ascertain what issues remain outstanding and if need be to then list the matter for trial or to make such other orders as may appear necessary and beneficial at that time.
The other issue that arises in the proceedings relates to a suggestion that a quantity of dialogue regarding these proceedings, denigration and comments regarding each of the parents, is occurring through Facebook. It seems very common in this court’s experience that social networking sites are used by parties as a means to continue their vendetta and their warfare with each other.
It is important to remember that s. 121 of the Act precludes the publication of proceedings to any person who is not a party to those proceedings or publication of any material with respect to proceedings that would identify parties to the proceedings. That section creates an offence punishable by a period of imprisonment. Section 121 specifically refers to publication in a newspaper or periodical, or by radio broadcast, television, or other electronic means. That would clearly capture Facebook, My Space, Twitter and any other social networking site.
I propose to make an order restraining these parties from contacting each other, or allowing, causing, or permitting any other person to contact the other via Facebook, and certainly from publishing or referring to these proceedings or anything that arises in them via that medium.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 1 August 2011
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