Stevens and Richards

[2009] FamCA 1174

FAMILY COURT OF AUSTRALIA

STEVENS & RICHARDS [2009] FamCA 1174

FAMILY LAW – CHILDREN – With whom a child spends time – Supervision

APPLICANT: Mr Stevens

RESPONDENT: Ms Richards

INDEPENDENT CHILDREN’S LAWYER: Tim Mulvany

FILE NUMBER: MLF 1397 of 2002

DATE DELIVERED: 25 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 25 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Carter

SOLICITOR FOR THE APPLICANT: Hogg & Reid

COUNSEL FOR THE RESPONDENT: Mr Dunstan

SOLICITOR FOR THE RESPONDENT: Bowlan Dunstan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER TJ Mulvany & Co

Orders

1. That until further order the mother shall spend time with the child N born … October 2001 as follows:

   (a)On 24 December 2009;

   (b)On 26 January 2010; and

   (c)On 27 February 2010

   from 11.00am to 2.00pm in the precinct of D Shopping Centre supervised by a professional supervisor selected and paid for by the father and approved by the ICL, the ICL being at liberty to provide such documents to the supervisor as he considers appropriate.

2. That the final part of the hearing shall be listed before me for four days starting at 10.00am on 22 March 2010.

3. That there shall be a Family Report prepared by Ms W and released by 12 February 2010 and Ms W shall be at liberty to contact the supervisor referred to in these orders.

4. That each party shall file and serve any affidavits upon which they rely by no later than 26 February 2010.

5. That there shall be a telephone mention with Registrar Field on a date and at a time to be advised to the parties, and if possible in the week of 1 March 2010 to ensure the case is ready for hearing.

6. That by 4.00pm on 16 March 2010 each parent shall file and serve an outline of case to include a list of material to be relied upon and a summary of argument and a precise Minute of Orders sought, and the ICL shall file and serve the same documents by 4.00pm on 18 March 2010.

7. That each party shall have leave to file and serve any subpoenas sought, and such subpoenas shall be returnable in the Registrar’s Subpoena List at 9.30am on 14 January 2010.

8. That the parties shall have leave to file and serve reports (rather than affidavits) of any medical or counselling experts, or any contact centres or supervisors.

9. That pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

10. That my reasons for judgment today shall be transcribed and retained on the court file.

IT IS NOTED

1. In the event that the mother can pay the professional supervisor referred to in paragraph 1 of these orders then she shall advise the ICL by no later than 26 February 2010 that she will spend time with the child from 11.00am until 2.00pm on 6 March 2010.

2. In the event the professional supervisor is unavailable on the precise dates set out in paragraph 1 of these orders the father shall advise the ICL by no later than 7 December 2009 for the ICL to endeavour to locate another professional supervisor or to negotiate different dates.

3. In the event that the professional supervisor is unavailable on the date in Notation 1, the mother shall notify the ICL by 26 February 2010 who shall take the action set out in Notation 2.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1397 of 2002

MR STEVENS

Applicant

And

MS RICHARDS

Respondent

REASONS FOR JUDGMENT

1. Today I am going to set in place everything that is needed to have this case heard to conclusion in March next year.  The issue for me today in the meantime is what time eight-year-old N should spend with his mother. 

2. The ICL, supported by the father, proposes that there should be three occasions, each of three hours – one in December, one in January, and one in February – whereby the mother has supervised time with the child in the presence of a paid supervisor, the fees for whom should be met by the father.  The mother’s submission is that there should be no supervision and that she should be building up her time with the child on an unsupervised basis.

3. I accept the ICL’s proposal.  In doing so, I acknowledge that the mother has been trying very hard in re-establishing her relationship with the child, and she has been trying with some success, having seen him now nearly 30 times at a children’s contact centre in a fully-supervised setting over an extended period of time.  In the most difficult circumstances of that supervision, but also in the most difficult circumstances of having endured the black Saturday fires earlier this year and having lost her home, and I cannot begin to imagine what a difficult time she has had.

4. This case though has the most shocking and troubling history when it comes to little N.  He had been living with his mother until 2005. On the material before me it seems that he came into his father’s care in late 2005 when DHS and the Children’s Court stepped in to the matter – the child having escaped out of a window at his mother’s home.  He was only four years’ old.  He broke the window with a horse-shoe and cut himself very badly in the process.  It is a case where the material seems clear enough that having come from a really unsettled and uncontained background he has genuinely settled with his father and is developing very well.

5. The concern for me is that, against that background, a psychiatrist Dr K has recently diagnosed the mother with a serious psychiatric condition.  In fairness, he points out that he does not believe she is a physical risk to the child.  But in light of the history, her diagnosis the very serious concerns raised in Ms W’s preliminary report, and in light of my careful reading of the contact centre report – which reveals some instances, particularly in more recent times, where the mother has not been able to conceal from the child her own understandable frustrations in a way that I am concerned put the child at risk of emotional harm – I think it is premature for me to be ordering unsupervised time.

6. It is a pity that the contact service is no longer able to help.  It is also sad that I cannot approach this case on the basis of simply offering more encouragement to the mother, who I think is trying very, very hard.  However, it is the child’s best interests that must be at the focus of my decision.  It is also very sad that there is not enough money for there to be more paid supervision and that neither party can come up with an agreed supervisor.  They are all the factors that are feeding in to the supervised time between mother and child being shorter than otherwise. 

7. I know from what the mother’s counsel has said that part of her frustration is that she wants things to be moved forward, so that I will have more material by the final hearing as to how things can be progressed.  But that sort of forensic approach, again, has to take second place to my primary concern of the child’s best interests.  What I would say, however, so that the mother understands that there will be progress, is that her time spent with the child will now be in a setting different from a contact centre.  There is progress, and I am going to be able to see how these visits have passed and how the child has responded.  That is going to help me with a final decision.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  25 November 2009