Sully and Exelmans (No. 2)

[2008] FamCA 1194

FAMILY COURT OF AUSTRALIA

SULLY & EXELMANS (NO. 2) [2008] FamCA 1194

FAMILY LAW – RPACTICE AND PROCEDURE – Reinstatement of parenting application into the Magellan list not opposed – interim orders for time spent and communication by telephone–  parties to have further opportunity to seek variation of interim orders after release of full family report  and input by independent children’s lawyer

APPLICANT: Mr Sully

RESPONDENT: Ms Exelmans

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: TVC 568 of 2008

DATE DELIVERED: 17 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 17 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D O’Connell

SOLICITOR FOR THE APPLICANT: McBAIN LAWYERS

COUNSEL FOR THE RESPONDENT: Mr T Iser

SOLICITOR FOR THE RESPONDENT: COHEN KIRBY & ISER

Orders

1. That the parenting proceedings in relation to the child T born … February 2004 be reinstated.

2. That these proceedings be adjourned before the Honourable Justice Bennett at 9.00 am on 17 December 2008 (estimated to take not more than one hour) for determination of whether the parenting orders ought to be further altered pending the final hearing.

3. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child T born … February 2004 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the children by the next return date.

4. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

5. That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

6. That the mother and the father forthwith do all acts and things necessary to make application to have the family accepted into the contact centre at Fairground in Bendigo and the new contact centre operated by Berry Street in Shepparton for supervised time between the father and the child and provide to the independent children’s lawyer, when appointed, proof of such application being made.

7. That, until further order, as soon as the family has been accepted into either contact centre the father be entitled to spend time with the child T born … February 2004 under supervision of the centre for the maximum period each week or fortnight for the maximum time available.

8. That pursuant to Section 62G(2) a Family Report be prepared and released by 15 December 2008.

9. That until further order the father be entitled to communicate with the child by a mobile telephone service which is to be provided by the father to the mother (via their respective solicitors) and to place calls to that service from 8.00 am to 10.00 am and 4.00 pm to 6.00 pm daily but not at other times.

10. That the mother do all acts and things necessary to ensure that any mobile telephone unit which is provided by the father to her as provided by the preceding order is switched on between 8.00 am and 10.00 am and 4.00 pm and 6.00 pm each day and is adequately charged so that it can receive calls.

11. That each party keep the other informed of that party’s residential address and contact telephone numbers and do so in writing.

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

13. That until further order leave is granted to all parties to issue any subpoenae to give evidence or to produce documents returnable in any subpoenae list between now and the further hearing date or on such other date as is nominated by Registrar Mestrovic.

14. That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: TVC 568 of 2008

MR SULLY

Applicant

And

MS EXELMANS

Respondent

REASONS FOR JUDGMENT

ex tempore

1. In this matter, the final orders were made by Brown J on an unopposed basis on 22 August 2008. Those orders concern the child T, born in February, 2004 and provided, amongst other things that:-

   (2)That the mother and father have equal shared parental responsibility for [T].

   (3)That [T] live with the mother and she have sole responsibility for decisions relating to his day to day care, welfare and development. 

   (4)That the father spend such time with [T] as is agreed between the parties and it shall be in the absolute discretion of the mother as to whether time the father spends with [T] is supervised and by whom. 

2. The father, who had been the applicant in the proceedings, had failed to attend court and was uncontactable.  Her Honour reserved liberty to the father to seek to set the orders aside within 21 days and the father did so by filing an application on 10 September 2008.

3. There is no issue today about reinstating the proceedings and requesting from Victorian Legal Aid the appointment of an independent children's lawyer for T.  The matter will go back into the list and a family report will be prepared.  The report will be commenced on 1 December 2008.  It will involve an assessment of T, his mother and father, and - at the discretion of the family consultant - other relevant persons, which at this point would seem to include the mother's partner, Mr W, and the father's mother, the paternal grandmother. 

4. The family report should be available for release on 15 December 2008. 

5. There is a trial notice listing at 2.15 pm on 17 December 2008.  It is anticipated that the matter will be fixed for final hearing in the three weeks of Magellan sittings commencing on 16 February 2009.

6. I will take this matter at 9 am on 17 December, 2008 to hear submissions only in relation to any variation of the parenting regime which results from the orders that I make today.

7. The issue for determination today is what time T should spend with the father.  The father resides in Queensland, but is currently in Melbourne staying with his mother.  He says he will come back to Victoria for the purpose of seeing T as regularly as he can.

8. The father seeks orders that he see T from 10 am on this Saturday until 4 pm on Monday; from 12 noon on Friday, 12 December to 12 noon on Friday, 26 December (a period of 14 days); and that he be able to communicate by telephone with T via a mobile telephone which he will provide for T’s use, such telephone to be kept in the child's bedroom.  He seeks an order that each party keep the other informed of their residential address and telephone contact numbers.  There were no submissions in opposition to that, so I take it to be a matter which is not opposed.  Finally, the father seeks that the mother be restrained from allowing or permitting T to have any contact whatsoever with her partner, Mr W.

9. That last order was originally made by Monteith J in the Townsville registry of this Court on 16 June 2008.  It was continued until the matter came before Brown J on 22 August 2008, that being the day of the unopposed hearing.  Her Honour's observations were that, this being a court of private law, it was up to the parties to press the applications before it.  Her Honour considered the facts and the evidence adduced and discharged the injunction.  The father's application today is for an injunction to be made in the same terms as the injunction that was dissolved when the proceedings were finalised.

10. The relevant history up until final orders were made is set out in the reasons of Brown J delivered on 22 August 2008 the case neutral citation for which is [2007] FamCA 770 and from which I quote the following:-

    [T’s] parents separated in early 2006 and he has been living with his mother.  The father lives in Queensland and the mother lives in Melbourne.  Her present partner is Mr. [W].  The mother has another child, [N] who lives with his father in [regional Victoria]. 

    Proceedings were commenced by the father in respect of [T] in the Townsville Registry of this court on 13 June, 2008.  He sought that [T] live with him, and that the mother spend time with [T] as agreed between them, provided that she did not bring the child into contact with Mr. [W].  Until that time there were no orders governing the time the father spent with [T]; the parties had made arrangements between themselves.

    It transpired that at the time that application was made by the father, he had been overholding [T], under one such private arrangement.  [T] was not returned, as he should have been.  On 11 June 2008 the mother filed an application in the Magistrate's Court of Victoria, at Bendigo, and a recovery order was made, providing for [T’s] return to her.  As is apparent, that order was made a couple of days before the father filed his application in Townsville. 

    According to the affidavit the father filed with his application, the mother is a drug user and has tested positive for hepatitis C.  He made allegations about the circumstances in which (he deposed) [N] came to live with him, and said that [T] told him in February this year that Mr [W] "put his willy in my mouth". 

    The mother filed an affidavit in support of her application for a recovery order, in which she deposed that, since separation, she has been the primary caregiver.  She deposed that the father's time with [T] has been irregular and on his terms; he saw him when he wanted to do so, rather than being child focused.  According to her, the father was well aware of her drug use; he, too, used drugs.  She gave evidence of the arrangement pursuant to which [T] went to spend time with his father; as the father was between jobs, it was agreed that [T] would go to him and return to her on 6 June.  He did not return.

    In that affidavit the mother spoke of the father's hypervigilance about the way men looked at [T].  Her evidence was that the father was sexually abused or violated as a young man and has never come to terms with that abuse, or had any treatment in respect of it.  In her opinion he projects his own fears onto [T]. 

    […]

    Before the court is the DHS report, dated 13 August 2008.  In the opinion of the protective workers, there would be significant concern for [T’s] safety and emotional wellbeing if he were to spend unsupervised time with his father.  The report mirrors the mother's earlier expressed concern;  it notes that it appears the father was been sexually abused as a child and had never received proper assistance to deal with that issue.  DHS was concerned that a similar allegation to the one now made against Mr [W] was made by the father against a paternal uncle at an earlier time.  DHS substantiated none of the allegations made by the father against Mr [W] or the mother.

    CASA was contacted by DHS and requested to provide a specialist assessment of [T].  They declined on the basis that he is very young, he has already been subjected to a number of interviews without any substantiation of sexual abuse and demonstrates no specific indicators of sexual abuse in his behaviour or his demeanour.  It was the view of those at CASA (a view I would commend) that further assessment of [T] in relation to these sexual abuse allegations would themselves be abusive of the child. 

    DHS recommends that the father's time with [T] be supervised and that he undertake counselling in relation to his own problems arising from his own abuse.

    […]

    In my view, it is not in [T’s] best interests for these proceedings to limp on, adjourned and adjourned again.  Litigation imposes financial and emotional stresses, which have the capacity to impact adversely on a parent.  Importantly, the current orders effectively stop the mother living with her partner.  The evidence before the court supports a finding that there is no risk to [T] from his association with Mr [W].

    In these circumstances, I propose to discharge the injunction made by Monteith J.

    I do propose to make final parenting orders today.  The orders will be served on the father and he will have 14 days in which to set them aside.  I do that to ensure that natural justice and procedural fairness are accorded to him.  To do otherwise would expose the mother to further proceedings. 

11. The developments after the final order was made have been, according to counsel for the father, that the father has attended counselling in relation to sexual abuse provided by Centacare in Queensland.  There is a letter, which is exhibit F1, which refers to the father's attendance at counselling in Victoria "since 30 September 2008".  It is silent as to the nature of the counseling. It would appear that the father has attended some counseling related to sexual abuse.  That said, I don't know whether he has attended counselling for sexual abuse from a victim's point of view or from another point of view.

12. The father's application is for unsupervised time with T.  As a fall-back position, his case is that the face‑to‑face time that he seeks will be supervised by his mother, the paternal grandmother.  Neither proposal is acceptable to the mother.  She opposes the paternal grandmother as a supervisor on the basis that she believes that the paternal grandmother can be manipulated or overborn by the father. It is submitted on behalf of the mother that the father and the paternal grandmother have a troubled relationship which may produce personality clashes of friction in front of the child. 

13. Since the matter was before Brown J is that the relationship between the mother and Mr W has continued. The mother opposes the reimposition of the injunction which was sought by the father.

14. The report of the Department of Human Services, which was before her Honour on 22 August, is dated 13 August.  It is 10 pages in length.  It provides a conclusion but not very substantial in terms of analysis.  It provides some history of contacts and it provides a summary of what was said by relevant persons. 

15. The conclusion proferred in the report from DHS is :-

    As [the mother] has been assessed as acting protectively of the child and ensuring that the child has ongoing support through CASA, and not allowing the children (sic) to have contact with Mr [W] or [the father], therefore Child Protection will not continue to be involved with this family.  Following the investigation, Child Protection have assessed that there would be significant concerns for the safety and emotional wellbeing of [T] if he were to have any unsupervised contact with his father.  Child Protection respectfully recommends the following for [T]:-

    1)That [T] continue to reside with the mother.

    2)That [T] only have supervised access with his father.

    3)That his father receives counselling for sexual assault before resuming contact with [T].

16. As indicated, the father says that he has commenced the counselling for sexual assault referred to by DHS in the report.

17. The father seeks the extended time on a supervised or unsupervised basis. He submits that he has previously had a significant involvement in T’s life in excess of just weekend or special day time.  He seeks the reimposition of the injunction against Mr W for, amongst other reasons, an assertion that Mr W has an acquired brain injury which may lead him to act in an unpredictable manner.  That is not the basis upon which I would impose a restraining order and would not do so in the absence of evidence.  I do however note that the Department of Human Services considered that the mother not allowing T to have contact with Mr W was an appropriate protective measure.

18. The orders which I make today may be in place for only a month.

19. I have regard to, and balance, the importance of T having and maintaining a relationship with his father with the need to protect T from physical or emotional harm. 

20. My concern is to make orders which are most consistent with T’s best interests. 

21. I am satisfied that T needs to see his father and needs to do so as soon as possible.  However, the fact that the father did not participate in the last hearing does not make his case any stronger (or weaker) than it then was. The difference between then and now is the indication of some counselling having been undertaken by him and a manifest intention to participate in the proceedings.

22. I cannot be satisfied at this point that it is appropriate for T to see the father on an unsupervised basis. That may seem harsh but considerations of what is fair to either or both of the parents must take second place to what is in T’s best interests having regard to the need to protect him from abuse and the benefits that he will obtain from seeing the father.  Supervision by a contact centre, such as that proposed by the mother, provides a structure and professional support.  It comes with the limitations of frequency and duration, but there are protections in place for both the child and the father, and to my mind, that is the appropriate course to follow for at least the next month. 

23. The mother had not made any inquiries of what contact centres were available or the waiting list for any of them.  Whilst the matter was stood down before me, her representative ascertained that Bendigo Fairgrounds Contact Centre has a delay of approximately a month, as much as these things can be forecast.  It also appears that there is a contact centre at Shepparton run by Berry Street which may have no or only a minimal waiting list. 

24. Neither party opposes both parents being required to make application to both contact centres at the same time, and the time commencing as soon as a centre becomes available at whatever centre is first available.  That is the order that I will make. 

25. The father’s secondary position is that he spend time with T under the supervision of the paternal grandmother. I am not prepared to make that order today notwithstanding that, if I did so, T would see the father in a supervised environment without delay.  It is not that I accept what the mother asserts about the relationship between the father and his own mother or that I am satisfied that there would be any adverse impact on T as a result of his paternal grandmother being obligated to supervise the father’s time. There is insufficient evidence at this point upon which I can be satisfied of anything in that regard. The safest way forward for T, at this point, is for the family to use a contact centre as soon as one becomes available. I am conscious that this may result in a delay of some weeks before the father gets to see T, but in the circumstances I am satisfied that that delay is necessary.

26. The father also seeks a fairly unusual order in relation to telephone communication.  That is that he be able to communicate by telephone with T via a mobile telephone which he will provide for T’s use and which he wants T to keep in his bedroom. The father asserts that these arrangements are necessary because he works shifts and he can't always call T at a specific time.  He says that, previously, he has spoken to T by calling the mother's telephone. 

27. There doesn't seem to be any opposition on the mother’s part that the communication between the father and T be by mobile telephone, or that the mobile telephone be provided by the father.  The unit need not have a call-out facility, as the sole use of it will be to receive calls. 

28. The father seeks to be able to make calls from 7.30 am to 7.30 pm each day. However it does not seem that he oppose a shorter period of time or window of opportunity in which to place a call. .

1. The mother seeks that there be only certain times when the father can call. There are a number of reasons why I consider that it is appropriate to restrict the times of telephone communication. Those reasons is that the mother should be able to impose a routine on T which accommodates times when the father may call. To do otherwise is to increase the potential for T to get a call but not be able to talk because he is eating dinner, bathing or the like. T should not be concerned about the potential for missing a call. Communication by telephone is appropriate if it enhances T’s life and is of benefit to him. It is not going to be a benefit if it is unduly disruptive to his day to day routine in the mother’s home.  Accordingly, I am satisfied that the mother's proposal has merit and that calls should be restricted to certain times of the day.  That means that if the father is not available during those times, he won't be able to avail himself of the entitlement to communicate with T pursuant to this order. 

2. I will make orders which provide that the father can place calls from 8 am, which is the earliest time proposed by the mother, to 10 am; and from 4 pm to 6 pm each day.

3. It is not incumbent upon the mother to ensure that the T is available to take calls during that time.  It will be incumbent upon the mother to ensure that the telephone which is provided by the father is adequately charged and able to receive calls during that time but whether T is in the house is another matter.

4. In deciding on these new orders, I am mindful of the additional considerations but the fact is that there is limited evidence at this interim stage.  The additional matters are, in my view, a means of focussing on the core considerations which are the assessment of what benefit there is for T to spend time with the father and the need to protect T from harm. T is too young and his recent care has been dominated by the mother to an extent that it is not appropriate for me to have regard to any views of T. More detailed application of the additional considerations must await more comprehensive evidence including, but not limited to, the family report which is due for release within the next month.

5. Turning to the restraint which the father seeks be imposed in relation to Mr W, he is the mother's partner. There was such as restraint, expressed as:-

   That the mother is enjoined from allowing or permitting the said child to have any contact whatsoever with the male person [Mr W], who has been currently residing with the respondent mother.

   See paragraph 3 of the Order of Monteith J made, in Townsville, on 16 June 2008. That order was made when both parents were represented but may have been carried over from an earlier hearing, on 13 June 2008, which was ex parte the mother.

6. The Court’s power to grant such an order is found in Section 68B of the Act. That section provides that I may make such order or grant such injunction as is “appropriate” for the welfare of the child. T’s best interests are still the paramount consideration.

7. The last injunction/order was discharged by Brown J in circumstances where the father was not at court or pressing to maintain the injunction.  Mr W is now residing with the mother.  I bear in mind that the family is about to participate in a family report process.  I am satisfied that the time pending a hearing is a period when the family members perceive themselves to be under considerable scrutiny. It is a fairly accurate perception. Brown J has already found that there was insufficient evidence to sustain the injunction and nothing of significance, vis a vis the matters to which the injunction was directed, have changed since Brown J.’s order.

8. In all of the circumstances of the case I do not consider it appropriate to impose the injunction in relation to Mr W.

9. As indicated, I will look at the matter again on 17 December, 2008.  I require that the parties be ready to make their submissions at 9 am.  I should have to hand the family report and so should the parties. It will be necessary for the parties and their practitioners to consider the report prior to coming into court. Of course, the contents of the report will be untested on that day. However, that does not preclude the parties, including the independent children’s lawyer, from assessing their respective positions in light of the observations and opinions of the family consultant.

10. So, on 17 December I will look at the matter to see if, from T’s perspective, an alteration to the parenting regime which I impose today, being only supervised time at a contact centre, is warranted and should be implemented between then and the final hearing in March 2009. On the next return date, I also expect to have the benefit of input by an independent children’s lawyer.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  4 December 2008.