Stoneham and Sutherland
[2011] FMCAfam 96
•27 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STONEHAM & SUTHERLAND | [2011] FMCAfam 96 |
| FAMILY LAW – Parenting proceedings – supervised time with child – interim orders. |
| Family Law Act 1975 (Cth), Part VII |
| Applicant: | MR STONEHAM |
| Respondent: | MS SUTHERLAND |
| File Number: | NCC 2283 of 2007 |
| Judgment of: | Coakes FM |
| Hearing date: | 27 January 2011 |
| Date of Last Submission: | 27 January 2011 |
| Delivered at: | Newcastle |
| Delivered on: | 27 January 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Hussey |
| Solicitors for the Applicant: | Intercept Law |
| Counsel for the Respondent: | Mr Boyd |
| Solicitors for the Respondent: | Fowler Predny Solicitors |
ORDERS
The matter is adjourned to 2.15pm 4 August 2011 for a directions hearing.
The Orders are made in accordance with the draft minutes of Order and marked with the letter “A”.
The Solicitor for the Respondent is to file a clean certified typescript of the draft minutes of the propsoed orders marked “A” within forty eight (48) hours of today by email.
The Extempore Judgment of today be made available to the parties as soon as possible and a copy of the reasons for judgment also be made available to the [omitted] Contact Centre at [W].
Further Interim Orders
That within 7 days each party contact the Director, Relationships Australia “[omitted]” contact centre, [W], for the purpose of organizing supervised contact for the child [X] born [in] 2004, and to embark upon intake assessment at the said centre.
That within 7 days the solicitor for the mother furnish to the said Director copies of the following:
2.1these orders;
2.2the Family Report of Ms L dated 4 March, 2009;
2.3the document entitled “Stoneham/Sutherland”: Allegations of Violence and/or Abuse Concerning Applicant Father;
2.4records of Relationships Australia, [B], in relation to the said child (which documents comprise Exhibit “M7” in these proceedings);
and that the solicitor for the mother shall be given photocopy access to the said Exhibit for the sole purpose of compliance with these orders.
That the parties do all acts and things to facilitate the child spending twelve 2-hour sessions with the father, such sessions to be reportable to the solicitors for each party.
That the contact sessions be terminated upon any of the following occurring :
4.1if the father fails to attend on any 2 occasions;
4.2any adverse incident involving a centre staff member and the father is reported;
4.3if the mother encounters any adverse contact with the father in connection with the contact visits as organized.
That each party comply with all reasonable directions of the Director and/or staff members of the said centre to ensure the proper conduct of the contact sessions.
That the father furnish to the mother’s solicitor within 21 days written confirmation that he has arranged to commence:
6.1an accredited anger management course;
6.2sessions with a psychologist or other qualified therapist for therapeutic intervention relating to the issues of aggression and violence.
That the father furnish to the solicitor for the mother, within 7 days of receiving them, copies of any certificate or other written confirmation of satisfactory completion of such course or courses.
That each party have liberty to restore the matter to the list on 7 days notice to the other, failing which the matter is listed for final submissions at 2.15pm on 4 August 2011.
Notation:
These orders are made by the Court absent the consent of the parties.
IT IS NOTED that publication of this judgment under the pseudonym Stoneham & Sutherland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2283 of 2007
| MR STONEHAM |
Applicant
and
| MS SUTHERLAND |
Respondent
Ex Tempore
REASONS FOR JUDGMENT
Edited from the Transcript
In these proceedings the parents’ only child, [X], was born [in] 2004 and he is now 6 years [old]. He lives with his mother and has always lived with his mother. His mother also has sole parental responsibility for him. These proceedings have had a troubled history. The father is the current applicant, although the proceedings go back to November of 2005, but the present application was brought by the father in July of 2007 when he sought orders that he spend some time with [X].
The matter was part heard on 26 June 2009 and was truncated prematurely by the father. Subsequently, it came before the Court again on 1 December 2010, and was part heard until today, and today evidence has been given by Mr P, who is the family consultant, and who has made certain recommendations. Mr P was the author of a number of reports.
The mother lives on the Central Coast in a place which she prefers not to disclose and gives good reasons for her address not being disclosed. The father also lives on the Central Coast.
The mother is legally aided. The father is not legally aided and he is currently awaiting the outcome of a workers compensation claim. At the conclusion of the whole of the evidence, and bearing in mind especially the evidence of Mr P, and bearing in mind the competing applications, the father effectively seeking initially a supervised reintroduction, and the mother opposing the father spending any time with the child, but in the alternative proposing supervised time at a [omitted] Children’s Contact Centre, and the father not having spent any time with [X] since February of 2009, and prior to that only a very spasmodic time, it is my view that the father should have one last opportunity to re-establish his relationship with [X].
My reasoning is that it is clear from the mother’s evidence that [X] has a clear recollection of his father and at times in the past has enjoyed a relationship with him. What I am required to do is to make a decision in the child’s best interests, not the parents’ best interests. I take into account particularly the matters I am required to consider under section 60A, section 60B and section 60CC.
It seems to me on the evidence before me, and I outlined to counsel before I was going to hear submissions what my thoughts were, and that is that it will be detrimental to [X] and certainly not in his best interests, and referring to Mr P’s evidence, to the effect that if [X] did not have any face-to-face time with his father it would in all likelihood be quite damaging for him.
Then it occurred to me that the father should have this one last opportunity, but with strict conditions attached to it. That opportunity is to establish that he is able to and wants to have a relationship with [X] which does not involve conflict, which involves the father being restrained as far as his past propensity to anger is concerned, and establishes that he is interested in [X]’s welfare and that he can establish the basis of [X] spending meaningful time with him.
I am well aware and acutely aware of the mother’s concern about this occurring and, for those reasons, there must be appropriate protective measures put into place and that the father does not need to know where the mother is living. The father does not need to know at this stage where [X] is going to school. It is merely putting into place something which gives [X] the opportunity to enjoy a relationship with his father, notwithstanding the mother’s concerns about that occurring.
Mr Hussey, for the father, resists the provision of certain documents to the Relationship Centre, one of which is a summary prepared by counsel for the mother, her allegations of violence and/or abuse concerning the applicant father. Mr Hussey made forceful submissions as to why that documentation should not be included. I am against him and for these reasons. It seems to me on the evidence there have been past difficulties with the Contact Centre as far as the father’s conduct is concerned. If it is that this is to serve as a useful prelude for the father to re-establish a relationship with [X], it relies entirely upon not only the integrity of those persons conducting the Contact Centre, but also their awareness and what to look for as far as the father’s conduct and behaviour is concerned.
If the father is sincere about his intent to re-establish his relationship with [X], he will behave appropriately. If he is able to contain the past anger he has exhibited that will demonstrate not only to [X], but also the mother, that he, in effect, has changed his ways, and that can only be for [X]’s benefit. But for the staff at the contact centre to perform their job and report upon these matters, it is essential that they have the preliminary information. It can be emphasised that these are not proven matters. They are merely matters which have been reported as allegations as summarised by counsel for the mother.
It is similar to the father attending upon a psychologist, which he is going to do or, indeed, the psychiatrist whom he is seeing in relation to his workers compensation claim. A treating professional requires a history of what has gone on in the past to assist observation, diagnosis and assessment. It is no different for the managers and staff of a Contact Centre. It is possible that the Contact Centre may decide that it is not appropriate to supervise. I hope that does not happen. It seems to me, subject to any further submissions that I receive, that a copy of these reasons for judgment may also be made available to the contact centre, but I will hear submissions about that shortly.
It is essential too, in my view, that the mother continue to receive the benefit of a grant of Legal Aid. My recollection is that her circumstances are far from favourable financially. She has a young child, [Y], who is almost three years of age, to look after as well as [X], and she is not working. So for those reasons, I would make a very strong recommendation that the Legal Aid Commission continue her funding at least until the matter comes back before the Court on the next occasion. All the evidence is in and, depending upon progress or otherwise at [the Contact Centre], it will be a matter of making final orders with any further submissions which may need to be made at that time.
Those are my reasons. They are very short reasons and I would ask that they be published.
The Court makes the following orders, those orders being set out in exhibit A, and I am grateful to counsel for preparing that document, initialled by me, placed on the Court file, dated 27 January 2011. They are not made by consent. They are made by the Court. I make a further order that the ex tempore judgment of today be published as soon as possible, made available to the parties, and a copy made available by you, Mr Hussey, or Mr Boyd.
A copy of today’s reasons for judgment also be made available by the solicitors for the mother to the [omitted] Children’s Contact Centre at [W].
The solicitors for the respondent to file a certified typescript of the draft minutes of proposed orders, annexure A, by email within 48 hours.
I certify that the preceding fourteen (16) paragraphs are a true copy of the reasons for judgment of Coakes FM
Associate:
Date: 7 February 2011
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