SYZMANOVSKI & MILLET

[2019] FamCA 91

FAMILY COURT OF AUSTRALIA

SYZMANOVSKI & MILLET [2019] FamCA 91

FAMILY LAW – CHILDREN – Interim – Where the father has spent no time with the child – Where the father seeks parental responsibility – Where the father seeks supervised time – Where both parties have a history of illicit drug use – Where there are allegations of family violence – Order for mother to have sole parental responsibility – Order for the child to live with the mother – Order for supervised time with the father – Where that supervised time must be with a contact centre.

Family Law Act 1975 (Cth)

APPLICANT: Mr Syzmanovski

RESPONDENT: Ms Millet

INDEPENDENT CHILDREN’S LAWYER: Philip A Wilkins & Associates

FILE NUMBER: WOC 528 of 2017

DATE DELIVERED: 20 February 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 15-18 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Acorn Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schroder

SOLICITOR FOR THE RESPONDENT: Johnson Horsley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Conte-Mills

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Philip A Wilkins & Associates

Orders on a final basis

1. All existing Orders in relation to the child X, born on … 2016 ("the child") are discharged.

2. The mother has sole parental responsibility for the child.

3. The mother keep the father informed as to all decisions which she makes in relation to issues concerning the long-term care, welfare and development of the child.

4. The child lives with the mother.

5. The mother do all things necessary to cause registration of the birth of the child, and to include the father's details on the certificate, and provide a copy of the birth certificate to the father.

Orders pending further order

1. The child spend time with the father at B Contact Centre in C Town ("the contact centre") at such times as are directed by the manager of this service.

2. Within seven (7) days of the date of these Orders each of the parties complete all intake requirements of the contact centre.

3. Each of the parties undertake and complete all parenting and counselling programs recommended by the manager of the contact centre.

4. These proceedings are listed before the Docket Registrar for mention and directions at 10.00 am on 20 February 2020.

5. The parties are at liberty to vary the arrangements for supervision of the child's time with the father by agreement between them in writing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Syzmanovski & Millet has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 528 of 2017

Mr Syzmanovski

Applicant

And

Ms Millet

Respondent

And

Independent Children's Lawyer

Philip A Wilkins & Associates

REASONS FOR JUDGMENT

The proceedings

1. Ms Millet and Mr Syzmanovski are the parents of a child X, who was born in 2016 and is presently two and-a-half years of age.  These proceedings concern parenting orders in relation to the child the child.

2. During the course of the trial the parents and the Independent Children's Lawyer ("ICL") reached an agreement to the effect that the child should continue to live with the mother and that there should be interim orders only for supervised time with the father.  The ICL submitted a Minute of Proposed Orders in the following terms:

   The Court orders on a final basis:

   1.That the mother have sole parental responsibility for the child [X], born … 2016.

   2.That the mother keep the father informed either by text message or email as to any decisions she makes in relation to her exercise of parental responsibility.  This includes decisions regarding where the child will be enrolled for education (day care, pre-school, primary school and high school) decisions in relation to the child's health, religion and welfare.

   3.That the child shall live with the mother.

   4.The mother and the father shall provide each other with their current mobile number and email address and shall advise the other within 48 hours of any changes to these contact details.

   5.That when communicating with each other by text message or email such communication shall only be about the child.

   6.That the mother shall forthwith register the birth of the child and ensure the father's details are included on the child's birth certificate and provide to the father a copy of that certificate.

   That the Court orders, pending further order:

   1.That the father spend time with the child, supervised by [B Contact Centre, C Town], or other contact service as agreed between the parties and the length and frequency of such time shall be in accordance with the availability, policies and procedures of the contact service.

   2.That within seven (7) days of the date of these orders, both parents shall approach the contact service and complete all registration and intake requirements and comply with all other requirements of the contact service prior to visits commencing and once visits commence.  This includes participation in and completion of any counselling, programs or courses recommended to either parent.

   3.That the ICL has leave to provide a copy of these orders to the contact service or whoever is providing the supervision.

   4.That, subject to the policy and procedures of the contact service, the father is at liberty to organise with this service for the paternal grandmother, [Ms D] and his sons [E] and [F] Syzmanovski to attend the contact service with him after the father by himself has had not less than six (6) visits with the child.

   5.That this matter be listed for further directions on xxxxx

   The mother consented to all orders proposed by the ICL.

3. The father sought orders in the following terms:

   UNTIL FURTHER ORDER

   1.That the child [X] born … 2016 shall live with the Mother.

   2.That each parent sign all documents necessary to register with [G Group] within seven (7) days to ensure that the supervised time can commence pursuant to these Orders.

   3.That the child shall spend time with the Father as follows:

   b.Stage (sic) One:

   1.To commence on Saturday 2 February 2019 for a minimum period of two hours and for no longer than three hours each Saturday to be supervised by [G Group].

   4.The Father is restrained from bringing any other person to the first four (4) visits and thereafter the Father shall be permitted to bring paternal family members to the visit as arranged by [G Group].

   5.That the cost of the supervised time and changeover times be paid by the father.

   6.That the parties comply with any requests made by [G Group] to arrange such supervised time including days and times.

   7.That Changeover pursuant to stage one will occur with [G Group] conducting changeover.

   8.The child shall spend time with the Father at the conclusion of Stage one and to commence on Saturday 4 May 2019 as follows:

   a.For a minimum period of 3 hours supervised by the Paternal Grandmother at a time as agreed and failing agreement from 10am to 1pm.

   b.From 9am until 12pm on the child's birthday supervised by the Paternal Grandmother.

   c.On Father's Day from 9am until 3pm supervised by the Paternal Grandmother.

   d.At all other times as agreed.

   9.Changeover pursuant to stage two will occur between the Mother and the Paternal grandmother and the Father is restrained from attending changeover unless the Mother has provided her express consent.

   10.The Mother enrol in, and complete, a Parenting After Separation course within six (6) months of these orders and provide a copy of the Certificate of Completion to the Father.

   11.That both parents shall contact [H Group] in [C Town] within seven (7) days to enrol in the Parenting Orders program and both parents shall attend at times as required by [H Group] to complete this program and both parties will accept any referral made by [H Group] for additional courses, counselling or programs.

   12.That the Mother contact [H Group] within seven (7) days to enquire about counselling that she may engage with that may assist with her anxiety about the reintroduction of the child with his Father, and the Mother shall engage in and attend any counselling recommended to her.

   13.That the Mother be restrained from leaving the child in the care of either of the maternal uncles and that the Mother personally supervise such time that occurs between the child and either of the maternal uncles.

   14.The Mother shall take all reasonable steps to register the child's birth within fourteen (14) days of these Orders, including obtaining the birth certificate and providing a copy to the Father upon receipt.

   15.That the Mother is to inform the Father of the following information as soon as practicable via text or email:

   a.any medical problems of illness suffered by the child, whilst in the care of the Mother;

   b.any medication that has been prescribed for the child;

   c.any specialist medical appointments with any medical doctor, any hospital admissions, psychiatrist, psychologist, counsellor or therapist regarding the child

   d.the telephone contact number of the Mother;

   e.Any circumstance which affects the capacity of the child to spend time with his Father.

   f.Any circumstance relating to the welfare of the child about which a parent be reasonably informed of.

   16.Both parents are restrained by injunction from physically disciplining the child.

   17.That within seven (7) days the Mother shall provide to the Father copies of the two photographs she has in her possession of the child and the Father.

   Additionally, the father sought that each of the parties should retain parental responsibility in accordance with section 61C of the Family Law Act 1975 (Cth) (“the Act”).

4. As the mother is the unchallenged primary residence parent, I could see no reason why there should be an interim order only that the child live with her.  Ultimately, counsel for the father indicated that he consented to final orders as set out in paragraphs 3, 4, 5 and 6 of the Minute submitted by the ICL.  Accordingly, I made such orders by consent on a final basis.

5. There thus remained for determination issues as to allocation of parental responsibility and the implementation of a regime for supervised time for the child with the father on an interim basis.  Essentially, the father's opposition to the proposals of the mother and the ICL arose from an anticipated nine month delay in the commencement of supervised time at the B Contact Centre in C Town.  It is a matter of substantial regret that a lack of adequate resourcing for contact centres stands in the way of an immediate introduction of supervised time.

Background

1. The father and the mother, who are both aged 33, met in 2011 and commenced a turbulent relationship.  The mother had used methamphetamines ("ice") for several months prior to the commencement of the relationship and the father consumed illicit drugs at various times.  The mother alleged, and the father did not seem seriously to deny, that he left the relationship for days at a time until the parties' final separation on 19 September 2016.  During those periods, it seemed abundantly clear that the father was engaged in drug use.

2. The father has three children in addition to the child, namely:

   ·Mr E born in 1999 (19) ("Mr E")

   ·F born in 2001 (17) and

   ·J born in 2002 (16).

   Mr E and F live with the father and J with his mother.  At times, Mr E and F have lived with their paternal grandmother Ms D.

3. On 25 February 2010 final orders were made by consent between the father and the mother of Mr E and F.  These Orders provided, inter alia, that Mr E and F live with the father and spend time with their mother as agreed between the parents.

4. When the mother and father commenced their relationship, she was pregnant with a child K, whose father is Mr L.  The mother gave uncontradicted evidence that she ceased all drug use when she became aware of this pregnancy.

5. With the father's support, the mother made allegations to police that Mr L sexually assaulted K.  It appears that no criminal proceedings against Mr L ever resulted from these allegations.

6. In 2012 the mother and K moved to Queensland and she resumed a relationship with Mr L.  She later returned to the C Town area with K and lived in the home of her mother.

7. When the mother left for Queensland, the father resumed use of illicit drugs including ice.  It appears that he was drug free between 2006 and 2012 and that he used various substances, including alcohol and ice, between 2012 and December 2015.  The father gave evidence to the effect that he has used no illicit drugs since 2015 and that he "has turned his life around".  This evidence of a positive change in the father's lifestyle was supported by the paternal grandmother and a retired church pastor, Mr M.

8. In 2013 or 2014 the father was shot in the leg, finger and wrist during an incident which involved the use of drugs.  The evidence revealed little of the details of these events.

9. In June 2014 the father damaged furniture and punched a hole in the wall of the mother's home during an argument between the parties.  K was present during this incident.  The mother left the premises immediately but the parties subsequently resumed their relationship.

10. In 2014 the mother gave birth to the parties' child N but, sadly, he lived for only approximately 50 minutes.  When N was born the father was serving a five-month term of imprisonment.  He received an eight-month suspended sentence following convictions for affray and possession of amphetamines.  He was incarcerated on 16 August 2014, after he committed another offence, and released from prison on 8 January 2015.

11. In April 2015 the father committed an offence which led to a charge of assault occasioning actual bodily harm.  The father and a friend were using at the home of a known drug dealer.  They assaulted a man who they believed to be about to engage the teenaged sister of another friend in an act of prostitution.  The father received a suspended prison sentence of two years in 2017.

12. During 2016 both parties began to attend the O Church in C Town.  The father has continued to attend a church and he receives support from Mr M.  Mr M acted as a character witness for the father during his most recent criminal proceedings and gave evidence in support of his case in this trial.

13. The parties separated on 19 September 2016, when the child was approximately eight weeks of age.  Since the separation, the father and the child have seen each other only during the interviews for the Family Report on 26 February 2018.

Consideration

Parental responsibility

1. By the father's own admission, he has engaged in conduct which falls within the statutory definition of family violence. For example, he conceded that he damaged property during the incident in June 2014. That being so, the presumption of equal shared parental responsibility does not apply as set out in section 61DA(2)(b) of the Act.

2. Counsel for the father properly conceded that his client "accepts that there will be a finding that the relationship was characterised by family violence." Nonetheless, the father sought that the mother be awarded sole parental responsibility only on an interim basis. His counsel stated that the father's "preferred position is for section 61C to govern parental responsibility".

3. I am satisfied, and I find, that the presumption is rebutted by evidence that equal shared parental responsibility would be contrary to the best interests of the child.  No relationship currently exists between the child and the father and the parties have had no communication since their separation.

4. The Family Consultant, Ms P, opined as follows inter alia:

   [Ms Millet] appears to be fearful of [Mr Syzmanovski] and to experience anxiety in relation to coming into contact with him and particularly in relation to [the child] coming into contact with him.  It seems that she may be unable to actively support the child developing a relationship with his father due to this fear and anxiety.  Based on her behaviour with [K] during this assessment, it seems that she has little capacity to shield the children from her anxiety, which, if she were to experience it on a regular basis, would cause stress and insecurity in her relationships with them.

5. The Family Consultant opined further:

   Since separation, they have had no communication and been unable to develop any kind of co-parenting relationship.  In addition, it is noted that both parents have a child or children from a previous relationship who do not spend time with their other parent.  Both parents report that there are particular reasons for this, but it is evident that neither parent has been able to successfully engage in a co-operative co-parenting relationship with their ex-partners."

6. I can identify no persuasive reason why there should not now be a final order for sole parental responsibility in favour of the mother.  In essence, the only submission against that outcome on behalf of the father was "the hope that things may improve" in the future.  It seems to me that the mother is highly likely to benefit from the security of an order for sole parental responsibility, as she attempts to come to terms with the introduction of the father into the life of the child.  Additionally, I am comfortably persuaded that the lack of effective communication between the parties militates against equal shared parental responsibility.

Implementation of supervised time

1. As noted, it was common ground that supervised time for the child with the father should be introduced by way of interim orders.  As noted further, it is most regrettable that there will be a delay of several months before the implementation of supervised time at the B Contact Centre in C Town.

2. The reality is, however, that there was no evidence whatsoever in relation to the supervision facility proposed by the father.  The Family Consultant described the benefits of introduction of supervised time at a government-funded contact centre for the parties and child in her oral evidence.  She stated inter alia:

   If there is no unacceptable risk, the best way would be for [the child] to be introduced to the father by someone [the child] is comfortable with.  The best person would be the primary carer but in my assessment the mother would not be capable of doing that, so it should be a professional supervision service.  A government-funded contact service could provide counselling for the parents and parenting programs for example Circle of Security for the father, and counselling services for the mother to support her.

3. For these reason, I consider that supervised time should be introduced at the B Contact Centre, despite the unfortunate delay.  I was informed by counsel for the ICL, and I accept, that there is some possibility of a vacancy at another contact centre, for example at Q Town, which could be transferred to C Town and may alleviate the delay.

4. The next issue is whether the paternal grandmother should be introduced to as a supervisor, as sought by the father.  The paternal grandmother, Ms D, gave evidence and indicated that she is willing to act as a supervisor.  This proposal was resisted by both the mother and the ICL.

1. Both the mother and the paternal grandmother gave evidence to the effect that they enjoyed a very close and supportive relationship after the death of the parties' child N.  The mother said in response to questions from counsel for the ICL words to the effect:  "I would love to have a relationship with her in the future" in relation to the paternal grandmother.  Significantly, the mother offered to arrange a meeting between the paternal grandmother and the child on 18 June 2018.  This invitation included the child's half-brothers Mr E and F.  Unfortunately, short notice prevented this meeting from taking place.

2. It may be that the mother and the paternal grandmother will manage to develop a constructive relationship at a later stage.  Notably, however, the paternal grandmother said during the course of her oral evidence words to the effect:  "I do not trust her so I would not expect to see her at visits" in relation to the mother.

3. In these circumstances, it seems to me that there are difficulties in the paternal grandmother taking on a role as supervisor at this stage in the development of the child's relationship with the father.  I am comfortably persuaded that the mother's anxiety militates strongly against supervision by any person outside a professional contact centre at this point.  I would not exclude the possibility, of course, that the mother and the paternal grandmother may be able to reach agreement in relation to her introduction as a supervisor in the fullness of time.

Additional orders sought by the father

1. The father sought an order to the effect that the mother is restrained from placing the child the child in the care of either of the maternal uncles and that she personally supervise any such time.  There was no evidence whatsoever to support the making of such an order.

2. The father also sought an order that the mother do all things necessary to register the birth of the child and provide a copy of the certificate to the father.  No reason was advanced on behalf of the mother as to why such an order should not be made and I will accede to this request. 

3. The father also sought an order that both parties are restrained by injunction from physically disciplining the child.  Again, there was no basis for such an order in the evidence before me.  In relation to the father, I would consider such an order to be otiose in circumstances where he will see the child only under professional supervision at this point.

4. The father sought an order that the mother provide to him copies of two photographs of himself and the child the child.  I would encourage the mother to do so as a gesture of goodwill but I will not make this proposed order.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 20 February 2019.

Associate: 

Date:  20 February 2019