Swefford and Tarbell

[2012] FamCA 72

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL [2012] FamCA 72

FAMILY LAW – CHILDREN – spend time with – supervised

Family Law Act (Cth) 1975

APPLICANT: Ms Swefford

RESPONDENT: Mr Tarbell

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYC 889 of 2008

DATE DELIVERED: 2 February 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 2 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Goodchild

SOLICITOR FOR THE APPLICANT: Self represented

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, Sydney

Orders

1. The Court makes no further orders as a result of the application of the mother contained in Exhibit 1 marked on 12 January 2012.

1. The costs of all parties of and incidental to today are reserved.

1. To the extent that any of the existing orders relate to Associate Professor Q, those orders are stayed pending further order of the Full Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swefford & Tarbell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:   SYC 889 of 2008

Ms Swefford

Applicant

And

Mr Tarbell

Respondent

REASONS FOR JUDGMENT

1. These are interim proceedings in relation to a child, D.  I made a decision on 22 November last year in relation to interim parenting arrangements and in relation to the single expert in the substantive proceedings.  Reasons were taken out at the time and they provide something of a history of the case and my involvement in the case which arose out of the trial judge being unavailable for a period.

2. I understand that aspects of the orders were made on 22 November 2011 are the subject of an appeal both by the mother and the father - I think different aspects. I understand that on 23 February 2012 the appeal index will be settled.  There was an application for a stay of aspects of my orders in relation to supervised time.  That application was dealt with on 12 January 2012 and I ordered a partial suspension of one of the orders in relation to an expert and otherwise no further orders were made in relation to the stay. Nothing was said in support of the application for a stay on behalf of the mother today so there is no remaining issue in relation to that, as I understand it.

3. The matters for today arose out of a document that was handed up on 12 January 2012 which was marked exhibit1. A number of orders sought. After a discussion between the bench and bar table on that date, I said that I would not entertain some of the prayers for relief that went to the issue of there being unsupervised time between the mother and the child. I made that decision on the basis that the issue had been already dealt with. The remaining issues were in relation to changing the supervised contact centre from C Contact Centre or the S Contact Centre to K Contact Service and a change in arrangements in relation to the payment for supervision.

4. Orders were also sought in relation to notification between the parents about medical matters;  keeping each other informed about changes of address;  establishing a right for each of the parents to attend extra-curricular and other events;  parties being at liberty to communicate with the school;  keeping each other informed about medical appointments;  ensuring they are both listed as emergency contacts;  advising each other in relation to various matters to do with the child;  each being responsible for discipline when the child is in their care;  each being restrained from denigrating the other parent to or in the presence of the child;  and the father being restrained from discussing the proceedings or releasing documents to any or all third parties other than his legal adviser without further order and the father be restrained from physically disciplining the child.

5. So there are two broad categories.  One is the change in the contact centre and the other is these other category of orders.  It is said on behalf of the father and on behalf of the child that no further orders should be made today on the basis that the court has conducted an interim hearing in relation to the child’s living arrangements and subject to the fact, of course, that there are ongoing proceedings as a result of those orders the court shouldn’t now entertain a further application in relation to interim matters.

6. The mother seeks a change in the contact service because C Contact Service has had a physical change of accommodation and that there is now a smaller and less satisfactory area available. The new area is said to restrict the mother and, more importantly, the child in relation to the activities that can be conducted on the supervised visits.  Next, that the mother cannot afford the existing fees for C Contact Service and, in any event, could not afford any additional fees for more time with C Contact Service. Finally, the mother complains that the father has compromised the independence of C Contact Service by things that he has said, the contact that he has had, and by demonising the mother and members of her family to the staff at C Contact Service.

7. There is a problem with courts hearing the same issues over and over.  It has expression in relation to children’s issues in a decision of Rice & Asplund which adds to the normal concerns about repeated litigation with the potential impact on a child of re-visiting arrangements when there has been no substantial change.  The character of the matter that is before me was said to be, in effect, by way of a machinery change and/or that there had been a significant change of circumstances.  In that regard, the mother’s evidence in an affidavit sworn on 6 January 2012, is:

   The [C Contact Service] previously had a shaded outdoor area with climbing frames, cubby houses, swings and activities for younger children.  There was a house with a number of rooms for contact purposes.  The Centre had to move and the only availability was a small old house.

   I should say, the mother does not provide a time frame. The mother is having time from 9.30 to 11.30, once a week. I assume then she means that up until the date she swore the affidavit there was a house with a number of rooms for contact purposes.  “The Centre had to move,” she says and goes on:

   The only availability was a small old house nearby.  Currently, contact is held at this house.  There are two small rooms equipped with toys suited to toddlers and preschool children up to four to five years old.  There is a small verandah with one table and chairs and a small paved area at the back with no shelter from the sun or rain.  The yard is bare other than one toddler sandpit and a broken basketball hoop.  Space is highly restricted and there are no facilities or toys suitable for seven year olds.  As [the child] likes to be active we tried playing with tennis racquets or throwing a ball but the space was too restricting and the balls continually went over the fence.  Kicking a ball was not possible with toddlers and smaller children sharing the cramped yard.

8. She goes on, in relation to the cost, to say that she is facing a criminal charge for taking her son out of the country while a parenting order was in place.  She is pleading “not guilty”. The mother goes on:

   I have to pay $120 per visit for contact with my son at the [C Contact Service] and I receive $240 from Centrelink to live on.  The [Contact Service] fees amount to 480 a month and have caused me to live on severely limited income.  I am unable to afford standard rental accommodation.  I live in a granny flat attached to my brother’s home paying a nominal rental fee.  The Contact Service fees are not sustainable.  On 22 November, I was ordered the possibility of increased time with my son if the [Contact Service] had availability.  They have a waiting list and parents not currently having contact are given priority.  However, even if time becomes available I cannot afford to pay for more time.

9. The mother has attached some photographs showing pictures of the yard area and some pictures of the child and herself embracing and the boy taking photographs of plants and some other things.

10. There was an issue before me in relation to supervised time.  On the last occasion I made orders that provided for time at the C Contact Service and, if practicable, time at another named service.  I understand the agreed position is that there is no time available at the other named service. 

11. I suppose there are two issues. A decision has been made about supervised time, for better or worse, and I am not literally able to make a different decision today unless something substantial has occurred. There is not evidence before me on the basis of which I could find that anything substantial has occurred.  For all the reasons that the parties are aware of and the reasons that I alluded to in my judgment on 22 November 2011, the current situation is far from ideal circumstances or even acceptable circumstances for this little boy. In a perfect world there would be services available without cost; there would be unobtrusive supervision arrangements.  I suppose, in a perfect world, the parents mightn’t find themselves and the child mightn’t find himself in this position.  But this is simply where we’re up to. 

12. Amazing, unfortunate, unacceptable things have occurred in this boy’s life resulting, as I said on 22 November, in the child being excluded from his parents one after the other. It is remarkable then, as I referred to on the 22^nd that the notes of the C Contact Centre, although their involvement is impugned by the mother, refer to the interaction between the mother and the child which suggests that a loving reunion occurs each time there is interaction between them.

13. The mother describes, in her affidavit, the physical arrangements and says that they are nowhere near as good as they were but happily, she doesn’t say that that has, to her observation, resulted in, any significant change in her interaction with the child – no suggestion of a deterioration in their relationship. At the end of the day, the mother proposes another agency to supervise. There is no evidence from anybody else in relation to that agency.  It is said to be a pleasant environment.  It is said to be cheaper. It may be that it would be suitable but some note needs to be taken of the views of both parents about these arrangements.

14. The parties have very different views about the need for supervision.  Two things come to mind.  One is the risk of a child being abducted.  Very forcefully, Ms Goodchild points to the fact that it’s highly unlikely that the mother would be able to remove the child because of the fact that she doesn’t have a passport, she is under bail conditions of reporting and a financial penalty for members of her family if she was to go away.  It leaves the fact, however, as is conceded by her quite fairly, that the mother did unilaterally take the child from the country at a previous time. So there is that issue and there is the issue about the level of supervision in relation to the nature of the interaction.

15. I don’t quite understand the mother’s case about it but the mother corrects the record in relation to – or tries to correct the record in relation to what she has said to the child at the C Contact Centre. I don’t really follow the nature of the distinction she makes but her evidence is that the child said:

    My only problem is that I want to be with you every day, mummy.

    The mother deposes:

    I told [the child] I wanted to be with him every day too and replied, “Tell your school teacher that you want to be with me every day and tell other people.

    Then she says:

    I did not coach [the child].

16. And she says that the supervisor has incorrectly interpreted the conversation.  I must say, to the extent that the supervisor did, then perhaps I have fallen into the same error. It might be that the single expert who takes up the role in the case ultimately will say that what the mother told the child was proper and a sensible thing for the mother to say to the child. I can’t help thinking if there was evidence that the father had said those words to the child, the mother might be aggrieved about it.  I may be wrong.

17. It might be that there’s a distinction that I’m missing but having some experience in parenting cases over 16 or so years in this court, without that assistance, that’s the sort of communication that we would normally try and avoid occurring between an adult and a child who is the subject of proceedings in the court.  So, as I say, it might be that there’s some particular thing – a nuance that I’ve missed. Coming back to the abduction that is not an unremarkable thing to be euphemistic about it. So the problem is the mother’s assessment about the qualities of a supervisory agency aren’t necessarily going to be the same – as that of the father and may well be out-of-step with what an objective observer would say would be the necessary level of supervision.

18. As to the cost, there’s no background evidence about it and it’s not a finite, nil sum issue. The mother says that she is receiving some support from members of her family. One would be careful before giving away important supervision arrangements on the basis that there were problems with the payment. You could imagine the court would be criticised in those circumstances. 

19. There is no evidence about what efforts have been made to secure funds on a short-term basis by a loan, by advance, by whatever. In those circumstances I do not consider that I should revisit the supervision arrangements on the basis of cost or the adequacy of the physical environment or the suitability of the C Contact Centre.

20. As to the allegations that the father has contaminated the agency, the dates of most of the communications are dates before 22 November 2011 and cannot fall into the category of a change of circumstances.  So for those reasons it seems to me that I shouldn’t take the step of varying the orders I made. 

21. As to the various other orders, again, the matter was before me in relation to interim parenting arrangements in November 2011.  The mother was acting on her own account at that time and I referred in my judgment to the unusual fact that she had been granted legal aid, but had not yet obtained legal aid, and that I was told something to the effect - I think I’ve referred to this – that she mightn’t have had legal aid for the interim proceedings. Ms Goodchild told me on the last occasion that she was appearing pro bono the last time I saw the parties when the matter was fixed for hearing today.

22. Whatever might be said about it, the various orders sought are not machinery matters. They are not matters resulting from a change of circumstances.  For those reasons I propose to make no further orders as a result of the application of the mother contained in exhibit 1, marked on 12 January 2012.

23. I will reserve the question of the costs of the parties of and incidental to the appearance today.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 2 February 2012.

Associate: 

Date:  27 February 2012