Sullivan and Tyler (No 4)

[2013] FamCA 594

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER (NO 4) [2013] FamCA 594

FAMILY LAW – CHILDREN – interim – where the contact centre providing weekly supervised time has terminated their service – where the termination constitutes a significant change in circumstances – where the mother seeks unsupervised time – where supervised time is still in the child’s best interests

Family Law Act 1975 (Cth)

APPLICANT: Ms Sullivan

RESPONDENT: Mr Tyler

INDEPENDENT CHILDREN’S LAWYER: Christos Christaki

FILE NUMBER: SYC 889 of 2008

DATE DELIVERED: 14 August 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 9 August 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: KDB Holmes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The mother’s Application in a Case filed 26 July 2013 be dismissed.

NOTATIONS

1. I note that during the hearing, counsel for the Independent Children’s Lawyer raised the possibility of alternate contact centres. If either party or the Independent Children's Lawyer wishes to make an application that the child spend supervised time with the mother, that application may be listed before me expeditiously.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler 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 SYDNEY

FILE NUMBER: SYC 889 of 2008

Ms Sullivan

Applicant

And

Mr Tyler

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is another application by the mother for interim parenting orders in relation to D.

2. On 19 April 2013, I made the following orders, inter alia:

   2. Pursuant to s 118(1)(c) Family Law Act 1975 (Cth) or alternatively Rule 11.04(1) Family Law Rules 2004 (Cth), the mother shall not institute any further interim proceedings under the Family Law Act for parenting orders or any other orders in relation to the child [D] without leave of the Family Court of Australia.

   3. Pursuant to s 114(3) Family Law Act 1975 (Cth), subject to any further order of the Court granting permission, the mother shall be restrained from serving upon the father and the Independent Children’s Lawyer any application for leave to institute any further proceedings under the Family Law Act 1975 (Cth) for parenting orders and/or any other orders in relation to the child [D].

3. On 25 July 2013, I granted leave for the mother to institute further interim proceedings. The basis upon which I granted leave and the catalyst for the mother’s current application was that the C Contact Service (“C Contact Service”) took the decision to withdraw the availability of their service from the mother.

DOCUMENTS RELIED UPON

1. The mother relies on:

   4.1.Application in a Case filed 26 July 2013

   4.2.Affidavit sworn 22 July 2013

   4.3.Affidavit sworn 24 July 2013

   4.4.Statements in the mother’s written submissions (Exhibit 40)

APPLICATIONS

1. The mother seeks that the child spend unsupervised time with her from Friday after school until 6:00pm on Saturday.

2. The father and the Independent Children’s Lawyer seek that the mother’s application be dismissed.

CURRENT ORDERS IN RELATION TO TIME

1. On 22 November 2011, Loughnan J made orders that the child spend time with his mother for two hours on a Saturday at C Contact Service, and that the child spend additional supervised time with his mother as could be arranged with the SY Contact Centre at Suburb RF.

2. As I said in my Reasons for Judgment delivered on 30 January 2013, his Honour’s order for additional time at the SY Contact Centre has never been able to be implemented and that the SY Contact Centre have declined to accept this family because of the amount of management that would be involved and because the mother was seeing the child for some period of time at another contact centre.

THE TERMINATION OF VISITS AT THE CONTACT CENTRE

1. In her affidavit sworn 22 July 2013, the mother says the contact centre cancelled her visit with the child scheduled for 20 July 2013.

2. At the hearing, it was common ground that the C Contact Service have terminated their service altogether.

3. The mother says that on 13 July 2013 the coordinator of the C Contact Service, Ms HL, told her the child was banned from playing with his “nerf gun”; a toy that fires foam pellets. The mother asserts Ms HL said she “was taking this action because when she told the child it was time to go home, he fired a little pellet at her.”

4. The mother says Ms HL told her that the child “had repeatedly fired the little pellets at staff and that [the mother] had failed to correct him.” The mother denies the child has fired pellets at the supervisors repeatedly, but concedes he has done so on two occasions.

5. Ms HL wrote to the mother on 15 July 2013 directing that the nerf gun no longer be brought to visits.

6. The mother rang the MQ Centre (the body that manages the C Contact Service) on 19 July 2013 to complain about Ms HL, asserting (among other things) that the letter did not refer to the agreement she and Ms HL had reached after the visit on 13 July 2013 regarding the nerf gun.

7. Exhibit 39 is a bundle of documents subpoenaed from the C Contact Service. The bundle includes a file note of a telephone conversation on 19 July 2013 between Ms W (a MQ Centre worker) and the mother. Ms W records that “[the mother] stated she’d like to do more to [Ms HL] than hit her with a foam gun.” The note indicates that the mother made this statement on more than one occasion.

8. The mother’s written submissions became exhibit 40. I take the paragraphs where the mother asserts facts to be part of the mother’s evidence in this interim hearing. The mother refers to the file note as being “an unsigned statement supposedly typed by [Ms W]” and goes on to say at paragraph 21 of her submissions “[a]t no time did I make a threat. At no time did I say I wanted to do anything to [Ms HL] or any other person.”

9. Exhibit 39 includes a letter from the manager of the MQ Centre to the mother dated 24 July 2013 which says, inter alia:

   I write to advise you that I have decided to end your use of our service, [C Contact Service].

   …I have serious concerns about your conduct, your failure to follow the directions given to you by staff and the threats you made over the phone on 19 July 2013 about [Ms HL], Coordinator of [C Contact Service].

   …

10. I make no findings in the context of this interim hearing as to whether or not the mother made threats directed to Ms HL. The C Contact Service has the right to withdraw their service from any family at any time. The child will not be able to spend any time with his mother at the C Contact Service in the future.

RICE & ASPLUND

1. I am satisfied the termination of visits at the C Contact Service constitutes a significant change in circumstances justifying the reconsideration of interim parenting orders in relation to the mother’s time with the child.  That is not to say that anything has changed in relation to the need for supervised time on an interim basis.

THE REASONS FOR SUPERVISED TIME

1. Justice Loughnan found that supervised time between the mother and the child was in the child’s best interests for two reasons; his Honour found the mother to be a flight risk, and supervision acted as protection against the mother making inappropriate comments, or false allegations being made against the mother.   

2. In his Reasons delivered 18 August 2011, his Honour said:

   31. The main reason for supervision is the kidnap risk.  Talking to the mother during submissions, it is hard to see why she would be in any different position today than she was in April 2008.  She said to me that she now understands that she is able to ask for expedition of her application.

   32. No harm will come to the child under supervision.  There are some side benefits, as the parties have acknowledged.  Supervision ensures that there will be no inappropriate or negative comments against the father, no influencing of the child, and that no false allegations can be made against the mother for doing those things.  Therefore there is a protective element to supervision in those ways.

   33. It is artificial, it is expensive, it is limited.  They are the downsides to supervision.  However, it protects the child from something worse - the risk that the mother would, again, decide to take matters into her own hands and run away… 

3. In my Reasons delivered 30 January 2013, I said:

   86. The father’s case is, in part, that the mother is a flight risk. The mother says she left Australia because at that time at least she was firmly of the view that the child was being sexually abused by his father. I have insufficient evidence to be able to accurately assess what current level of flight risk the mother poses. On the face of it, in 2008 the mother had a certain belief about the father’s behaviour. A number of things that the mother said during these proceedings before me would indicate that she still holds similar views about the risk that the father poses to the child and the risk the child is at whilst he is in his father’s care. The mother was at pains to attempt to explain to me why she would not attempt to leave the country again. The mother says that in 2008 she had no idea that she was committing a criminal offence. She submitted the court would be confident given that she now knows she is committing a criminal offence, that she would not do so. Secondly, the mother asserts that she would not do so because she understands that such an action would be fatal to any chance that she had in obtaining a court order that the child return to primarily live with her. The mother is highly intelligent and the preparation of her material shows she is quite resourceful. Subject to full inquiry I am not prepared to assume that placing the child in the mother’s care on an unsupervised basis would not expose the child to being secreted again from his father as he was in 2008. Counsel for the Independent Children's Lawyer submitted that I should not take that risk and I agree in the short term it is inappropriate to do so. The mother may well be able to convince the court at a final hearing that she is no longer a flight risk.

SECTION 60CC FACTORS

1. In relation to s 60CC Family Law Act 1975 (Cth) factors, not a great deal has changed since my discussion at paragraphs 76 to 87 of my Reasons for Judgment dated 30 January 2013. The mother continues to assert the child has deteriorated in the father’s care and has tendered a copy of the child’s most recent school report from ER Public School indicating the child struggles to follow directions, struggles academically in some areas and refuses to participate in activities. In response, the father tendered results from a university science test in which the child received a credit, and a letter from ER Public School regarding the child’s improvement and his transition from the special education support class back to full time at H Primary School. In the context of this interim hearing, I am unable to make an assessment as to which parent’s assertion about the child’s performance and behaviour at school is correct.

CONCLUSION ABOUT THE MOTHER’S TIME WITH THE CHILD

1. The mother maintains she does not need supervision. She says she has not broken any court order since 2008 (when she removed the child from the country and secreted him from his father for two years and four months).

2. In the circumstances of an interim hearing, where the evidence on both sides is unable to be tested, the mother does not point to compelling new evidence that would lead me to find that she is not a flight risk.  I have nothing new which would alter what I said in paragraph 86 of my Reasons of 30 January 2013.

3. I find it is still in the child’s best interests for his time with his mother to be supervised, and on that basis I will dismiss the mother’s application.

ALTERNATIVE SUPERVISORS

1. The mother has not given any evidence from or about any alternate supervisors and it seems she has not turned her mind to suitable supervisors.

2. Counsel for the Independent Children’s Lawyer indicated the Independent Children’s Lawyer had made enquiries as to other contact centres in the Sydney metropolitan area that would be able to facilitate contact. Counsel said that all other potential contact centres have significant waiting times. Counsel indicated the service with the shortest wait is CI Contact, but that the wait for that service is still three months after an intake assessment.

3. The father was not present at the hearing, and neither party nor the Independent Children’s Lawyer made a formal application that the mother spend supervised time with the child at any other contact centre. I note the mother commented that she is unable to afford any other contact service.

4. If either party or the Independent Children's Lawyer wishes to make an application for the child to spend supervised time with the mother, that application may be listed before me expeditiously.

CONCLUSION

1. I accept that the result of dismissing the mother’s application means that it may be some time before the child has face to face time with his mother. Clearly this is not ideal, however in circumstances where the mother is unable to propose a suitable supervisor, and I have found that her time with the child should be supervised, the Court is left with no alternative.

2. I have listed the matter on 15 August 2013 for the purposes of making detailed directions about the evidence for the final hearing.

3. The mother will continue to have telephone communication with the child twice a week, as Loughnan J ordered on 22 November 2011.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 14 August 2013.

Associate:

Date:  14.8.2013