Sonner and Butin

[2009] FamCA 1306

FAMILY COURT OF AUSTRALIA

SONNER & BUTIN [2009] FamCA 1306

FAMILY LAW – CHILDREN – Interim parenting orders – Magellan – Supervision

Family Law Act 1975 (Cth)

FATHER: Mr Sonner

MOTHER: Ms Butin

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1546 of 2007

DATE DELIVERED: 11 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 11 December 2009

REPRESENTATION

COUNSEL FOR THE FATHER: Ms. Wheeler

SOLICITOR FOR THE FATHER: MacKinnon Jacobs Horton & Irving Pty

THE MOTHER: In person

INDEPENDENT CHILDREN’S LAWYER Westminster Lawyers

Orders

1. That until further order the child S born … November, 2006 spend time with the father as follows :

   (a)on each Sunday from 2:00 pm. until 6:00 pm.;

   (b)on each Wednesday from 2:00 pm. until 6:00 pm; 

   (c)from 3:00 pm. until 6:00 pm. on Christmas Day 2009;  and

   (d)at such other times as may be agreed between the parties.

2. That S’s time with the father be supervised at all times by the father’s mother, the paternal grandmother. 

3. That subject to any agreement between the parties to the contrary :

   (a)the father’s mother collect and return S at McDonald’s in W and the father not be present at or in the vicinity of the collection point;  and

   (b)the mother or her nominee deliver and collect S at McDonald’s in W. 

4. That upon advice from the Australian Childhood Foundation (“ACF”) that ACF is available to provide therapy or counselling with the mother and father to develop an understanding of S’s needs, strategies to manage her behaviour and better ways to parent S, then each do all things reasonably necessary to take part in such therapy and counselling and the mother (who has advised the court that ACF has advised it has capacity to undertake such work), ensure ACF has all such necessary information to enable the father to be contacted by ACF.

5. That the father have leave to issue subpoena addressed to:

   (a)Medicare;

   (b)the Department of Human Services;

   (c)Dr. O;

   (d)R Medical Centre;

   (e)Royal Children’s Hospital;

   (f)H Medical Centre; 

   (g)W Medical Centre;

   (h)Maroondah Hospital;  and

   (i)Victoria Police. 

6. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released before 4 March, 2010.

7. That the parties attend a Trial Notice Listing with the Magellan Registrar on 24 March, 2010 at 2:15 pm. and the mother may attend by telephone.

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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

9. That the reasons for judgment this day be transcribed and copies made available to the parties.

10. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:       MLC 1546 of 2007

MR SONNER

Father

And

MS BUTIN

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter has a very extensive history.  The parties’ daughter, S, was born in November, 2006 and the first file in the case carries a 2006 file number.  S has thus been the subject of litigation for almost the whole of her life. 

2. The proceedings which commenced in late 2006 culminated in final orders made in May 2008 which provided for the father to spend time with S.  At that time, a family report prepared by Mr. E was before the court.  To put it neutrally, Mr. E’s opinion was that the parents had very different perspectives about the extent of their own relationship, and about their child.

3. When S was born, there was no communication at all between her parents.  As a result of an application by the father, DNA parentage tests were undertaken.  It was after they confirmed his paternity that the father made an application for contact with S.

4. In July 2007 the mother married Mr. Butin.  They have a daughter who will be two around Christmas.  The father has a son from a previous relationship who will be fifteen in mid December.  The mother is pregnant with her second child with Mr. Butin;  she advised the baby is due in late February 2010. 

5. The current set of proceedings commenced when the father filed a contravention application.  The mother then filed an initiating application on 22 September, 2009, supported by a lengthy affidavit.  Today, the father has (with leave) filed a response to that application.  He, too, has filed a lengthy affidavit which, as I said to counsel in the course of discussion, has the hallmarks of a trial affidavit.

6. The mother’s affidavit was lengthy and detailed.  The father has responded to every paragraph and annexed a great number of documents;  there are medical reports, hospital reports, transcripts of earlier hearings and court orders, the family report in the earlier proceedings and a summary of the involvement with GordonCare, which supervised the father’s time with S at one point in the earlier litigation. 

7. The father also relies on a number of additional affidavits, filed with leave today.  One is sworn by Ms C Sonner, who is his sister-in-law.  One is sworn by Ms D, who is his friend or partner.  One is sworn by the paternal grandmother, who is his mother.

8. When one reads the material, and speaking as neutrally as possible, it is apparent that S is living in a very conflicted environment.  This is particularly so during changeovers or when something occurs which requires both parents to be involved at the same time, such as an illness or medical treatment.  A paediatrician, Dr. Y, has been involved with the child. 

9. It is clear that in the Federal Magistrates’ Court the parties agreed on a number of issues and the trial before the federal magistrate in 2008 was limited to questions of overnight time.  The federal magistrate referred in his judgment to the fact that the parties’ accounts of their relationship were “bizarrely divergent”.  That remains the case.

10. When the mother filed her initiating application she also filed a form 4 Notice of Child Abuse.  In the form 4 she alleged that S was scared of a scary man called “[B, (the father’s first name)]”, masturbated excessively, had recurrent thrush and bleeding from her bottom, and constipation.  She was refusing to eat, was experiencing night terrors and said that T touched her private parts and put his finger in her bottom and that it hurt. 

11. On 2 October, 2009 the Federal Magistrates’ Court transferred the proceedings to this court and on 5 October it was referred into this list.  A DHS report was requested and is before the court.  The report is dated 24 November, 2009 but was not faxed to the court until 3 December, 2009.  The writer concludes that concerns about sexual and physical abuse for S could not be substantiated;  DHS did substantiate emotional abuse. 

12. The opinion of protective workers, after making a range of enquiries, is that S has been exposed to a very high level of parental conflict.  The report writer notes that both parents may lack the ability to set aside their differences and hostility and act in a manner which promotes S’s emotional wellbeing and stability.  Protective workers had extensive discussions with both parents.  They read some of the material before the court.  They looked at case notes.  Concern is expressed about the mother video-taping the father when he collects S for contact and of the father using a still camera to take photos of the mother, while she is video-taping him and S. 

13. The mother, who acts for herself, said today that the father is video-taping all or much of S’s time with him.  If that is right, that alone has the capacity to impact profoundly on a child of her age, regardless of what other experiences she may or may not have had.

14. The mother said today that other people have witnessed the behaviours which she attributes to sexual abuse.  DHS workers have not been able to speak to anyone who has done so.  Workers expressed concern that S had been advised of home visits before workers arrived.  DHS has ensured that S has been given opportunities to make disclosures but, save to the references to a scary man, she has made no disclosures to protective workers.  Workers themselves have not observed any of the behaviours reported by the mother and the father denies observing such behaviours before his time with S ceased. 

15. In its report DHS recommends counselling for S to enable her to deal with ongoing parental conflict and educational programs for the parents so they can focus on parenting, rather than on their own dispute.  They recommend that handovers be conducted in “a neutral location by neutral parties” and that the parents do their best to promote S’s relationship with them both. 

16. No doubt these are all inspirational recommendations but they are not of great assistance to the court, in the short term, in circumstances where the material before the court is of two deeply entrenched camps and of a little girl having to move between them. 

17. Overnight time with the father ceased at the end of July, just at the point it was to be extended to three consecutive nights.  The mother has told the court that S has been booked into three year old kindergarten on the basis of the 2008 orders; those orders provided for the father to spend time with S on Wednesday and the mother proposed she attend kindergarten on Tuesdays and Thursdays.

18. Today, in addition to orders moving the case towards trial, including the preparation of a family report, the father seeks that the time he is currently spending with S be significantly increased.  Presently S is with the father from 2:00 pm. until 6:00 pm. on Sunday, supervised by his mother, with changeovers at W McDonalds.  The father seeks to see S on each Wednesday from 8:00 am. until 6:00 pm., on each weekend from 8:00 am. Saturday until 6:00 pm. Sunday, from 3:00 pm. on Christmas Day until 6:00 pm. on Boxing Day and on his son L’s birthday, which is mid December.  He proposes that all of that time continue to be subject to supervision by his mother. 

19. The mother’s submission is that there should be no increase in the father’s time with S at this point, save possibly some additional time at Christmas.  It is her submission that application should be made to GordonCare for time to be spent there;  she does not propose it as a changeover venue but as the place at which supervised time would occur.  Her enquiries suggest an eight week waiting period, whether for changeovers or supervision.  She has told the court of discussions she has had with the Australian Childhood Foundation (ACF) and of advice from ACF that S is too young for individual counselling.  However, according to the mother, ACF could work with the parents to develop strategies to manage S’s behaviour as she moves between parental worlds. 

20. The mother has also made submissions about the evidence she seeks to call at the trial.  I have explained that those matters will be considered by the Magellan registrar, after release of the family report. 

21. The independent children’s lawyer (ICL) submitted that there should be no change to the existing orders between this date and trial save, possibly, for some extra time on Christmas Day and on L’s birthday.  It is put that S is seeing her father on a regular basis.  He had, pursuant to a DHS recommendation, suggested some counselling at the ACF before the mother informed the court today of her discussions with ACF. 

22. The father proposed that the parties attend a parenting program.  The mother’s submission is that she has done such a program twice. 

23. It is clear that each time S moves between her parents she experiences considerable pressure, stress and anxiety.  It is for that reason that submissions have been made about time or changeovers being at a contact centre.  A couple of things should be said about contact centres.

24. First, I am not aware of a contact centre which could provide contact for four hours.  If the father were to spend his time with S at GordonCare it is probable that could be for two hours only.  Some contact centres may be able to supervise for three hours.  Many contact centres will not provide time in each week, but only in each fortnight as they endeavour to assist as many families as possible.  If the court made orders for the father’s time to be supervised at a contact centre, it would need to take into account the very real potential for his time with S to be significantly reduced. 

25. I add that supervision of a strict sort can be very difficult if the court is looking at orders remaining in force for a long time.  This is a matter that may need to be considered at another time. 

26. Changeovers at contact centres can be ordered regardless of the length of each contact period, and contact centres provide an environment which allows children to move between parents in a way which manages and supports their transition.  Nevertheless, problems arise when the changeover service is some way from a parent’s home, particularly if the time to be spent with a parent is relatively short.  If a child is to spend a lengthy period with a parent, it is less of a problem, because less time is taken in travelling. 

27. For example, if a parent is to spend four hours with a child and has to spend two hours of that time travelling between the changeover point and the parent’s home, that impacts very significantly on the child’s enjoyment of the time and on his or her relationship with the other parent.  It is not realistic to expect a parent to spend four hours with a child in the vicinity of a contact centre which is a long way from the area in which they and relatives live.  Those are some of the practical difficulties. 

28. About the law I say only this.  It is S’s best interests which are paramount.  The court has to balance the importance of S maintaining a meaningful relationship with both parents and others of significance to her, with the importance of protecting her against physical or emotional harm.  The mother has made very significant allegations against the father.  Those will be tested in due course, in the trial.  The father alleges that the mother is intent on undermining his relationship with S, an allegation as serious as the allegations of abuse made by the mother.  That too will be tested in the trial. 

29. I am not satisfied that the extension of time proposed by the father would be in the best interests of S at this time.  An extension is not essential for him to maintain a meaningful relationship with her;  that relationship exists.  The court must be cautious at this time.  It must endeavour to assess the alleged risk and minimise the potential for risk until such time as the court can make a proper assessment of the evidence. 

30. Bearing those matters in mind there is nevertheless some force in the submission that an additional period of time in each week would be of advantage to S. 

31. I do propose to order some additional time with S but not of the duration proposed by the father.  Orders will provide for the father to spend time with her as now, from 2:00 pm. until 6:00 pm. on Sundays and from 2:00 pm. until 6:00 pm. on Wednesdays.  That will not interfere with S starting three year old kindergarten and will ensure the enrichment of her relationship with her father, at a developmentally important time. 

32. Orders will provide for the father to spend time with S on Christmas Day, from 3:00 pm. until 6:00 pm. 

33. In respect of L’s birthday, the mother told the court that the date is also the date of her step-father’s birthday.  The Family Law Act 1975 places importance on all family relationships but sibling relationships are particularly important to a child. The day of L’s birthday is a Wednesday this year, so S will be spending time with her father on that day. She can thus see L then.

34. I will order that the parties do all things reasonably necessary to attend the ACF is offered the opportunity to do so, for assistance in developing strategies to better parent S.  The order will make it clear that it is not an order for counselling of S. 

35. I do not propose to order that changeovers take place at GordonCare, as I am not satisfied that is practical in the circumstances.  They will occur at W McDonalds, unless the parties make an agreement to the contrary.

36. The father’s time will continue to be supervised by his mother.  There will be an order for a family report, to be prepared and released by 4 March 2010, and a trial notice listing with the Magellan registrar on 24 March, 2010, at 2:15 pm.  The mother may attend by telephone if that is more convenient for her. 

I certify that the preceding
36  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the         day of         2010.

…………………………………………
Associate.