Talbot and WAYANS
[2013] FMCAfam 84
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TALBOT & WAYANS | [2013] FMCAfam 84 |
| FAMILY LAW – Children – interim orders – father seeks supervised time at a Contact Service – father has temporal lobe epilepsy – seizures – whether there is an unacceptable risk – whether the father’s carer should be present. |
| Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Sch.1 Pt.1 |
| Aldridge & Keaton (2009) FLC 93-421 Champness & Hanson (2009) FLC 93-407 Goode & Goode (2006) FLC 93-286 Mulvaney & Lane (2009) FLC 93-404 |
| Applicant: | MS TALBOT |
| Respondent: | MR WAYANS |
| File Number: | LNC 538 of 2010 |
| Judgment of: | Roberts FM |
| Hearing date: | 3 December 2012 |
| Date of Last Submission: | 3 December 2012 |
| Delivered at: | Burnie |
| Delivered on: | 11 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Wylie |
| Solicitors for the Applicant: | Legal Aid Commission of Tasmania |
| Counsel for the Respondent: | Mr J Petersen |
| Solicitors for the Respondent: | McGrath & Co |
| Counsel for the Independent Child’s Lawyer: | Ms J Dean |
| Solicitors for the Independent Child’s Lawyer: | McVeity & Associates |
ORDERS
That until further order [X] born [in] 2006 (“the child”) is to spend time and communicate with MR WAYANS (“the father”) as follows:
(a)for up to two hours each Sunday at the [N] Children’s Contact Service (“the Contact Service”) or on such other days and at such other times and with such frequency as may be determined by the staff of the Contact Service;
(b)that during such times Ms W (“the paternal aunt”) is permitted to be present at the Contact Service;
That within 7 days the father and MS TALBOT (“the mother”) must make all necessary arrangements with the Contact Service in order to comply with the enrolment procedures of the Contact Service.
That for the purposes of Order No.1 hereof the father, the mother and the paternal aunt must all comply with all rules of the Contact Service and with any reasonable directions or requests of the staff of the Contact Service.
That the matter is otherwise adjourned for mention to a date and time to be advised.
IT IS NOTED that publication of this judgment under the pseudonym Talbot & Wayans is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BURNIE |
LNC 538 of 2010
| MS TALBOT |
Applicant
And
| MR WAYANS |
Respondent
REASONS FOR JUDGMENT
MS TALBOT (“the mother”) is aged 34 years and MR WAYANS (“the father”) is 31 years old. They commenced a relationship in 2005 and [X] born [in] 2006 (“the child”) is the only child of their relationship.
Both parties have other children from other relationships, but they are not the subject of these proceedings.
The parties’ relationship ended in 2008 and it appears to be common ground that, although the father spent time with the child after the end of their relationship, he has not spent any time with her since March 2010. At about that time the father had chosen to cease spending time with her. However, he has since changed his mind about that.
It is also common ground that the father has a medical condition that causes him to have seizures or fits on occasions and that, as a result, his sister Ms W is his carer. I shall refer to the father’s medical condition below.
The mother commenced the proceedings in this matter in August 2010 when she filed an application seeking orders only on a final basis that:
·she have sole parental responsibility for the child;
·the child live with her; and
·the child spend time and communicate with the father “as may be agreed from time to time”.
In her first affidavit the mother had many objections to the father spending time with the child. However, those objections appear to be summarised in paragraphs 49 and 50 of the affidavit. They read as follows:
49. I continue to have concerns about the Respondent’s capacity to provide that for [the child]’s care. The Respondent continues to suffer from epilepsy and Ms W is his carer. When the Respondent and I were in a relationship I observed that when he consumed alcohol or became stressed that his fitting increased. The Respondent continues to smoke drugs and drink alcohol and I am concerned about how this impacts upon his health.
50. The Respondent’s fits have slowly become increasingly violent and when he fits it is harmful to himself and others and property around him.
In that affidavit the mother had also expressed concerns about Ms W. She said that Ms W had “threatened to take custody of [the child] on a number of occasions …”.[1]
[1] At paragraph 45
The parties met with a Family Consultant in December 2010, even though the father had not filed any responding documentation at that stage. However, that meeting did not result in a resolution of their differences about the matter, so I made an order for the appointment of an Independent Child’s Lawyer (“ICL”) for the child later that month.
In May 2011 the father filed a Response in which he sought both final and interim orders. In essence, he conceded that the child should live with the mother, but he sought orders for equal shared parental responsibility and he wished to spend time and communicate with the child.
The father responded to the mother’s paragraphs quoted above as follows:
Paragraph 49: Partially disputed. I agree that I still have brain lesions which cause epilepsy like symptoms and that Ms W is my carer. I rarely drink; perhaps two or three times a year for my birthday or Christmas, and this has been the case for at least the last 4 to 5 years. I do not drink or smoke around the children.
Paragraph 50: Denied.
Since that time, the matter has been mentioned in court on numerous occasions and both parties have filed further affidavits and a number of subpoenas have been issued.
On 28 May 2012 the father filed an Amended Response in which he sought interim orders that he spend time with the child at a the [N] Children’s Contact Service (“the Contact Service”) and that his sister, Ms W be permitted to be present.
Unfortunately, the parties’ dispute has become so entrenched that the mother now does not want the father to spend any time at all with the child, not even on a supervised basis at the Contact Service. In mid-September 2012 she filed an Amended Application[2] in which she sought orders, both final and interim, that the father “spend no time with the child”.
[2] Described as “Further Amended Initiating Application”
The father now wants me to make orders on an interim basis that he and the child spend supervised time together at the Contact Service. His application for those interim orders is supported by the ICL. However, the mother’s lawyer has made it very clear over a number of months that the mother is very strongly opposed to any such order.
Because I was of the view that there would be little point in holding an interim hearing if the staff of the Contact Service were not prepared to facilitate any supervised time between the father and the child, I required some reassurance in relation to that. When the matter came on for an interim hearing on 3 December 2012, I was provided with a copy of an e-mail advising that the Contact Service is willing to facilitate supervised time between the child and the father upon the conditions of their service agreement, which includes “the authority of a supervisor to end visits and for the manager to withdraw the service, should there be any concerns for the safety of children, staff or other service users”. The e-mail also suggested that the father’s “sister and carer, be authorised to attend visits with [the father]. This would increase the safety of all children using [the] service, should [the father] have a seizure when using the service”. [3]
[3] The email is retained on the Court file as Exhibit “ICL1”
The documents produced pursuant to a number of subpoenas are voluminous and the lawyers for both the mother and the father produced typed documents to assist me in relation to those documents.
The mother’s lawyer initially produced a 48 page document entitled “Glossary to Subpoenaed Documents”. That was subsequently supplemented with:
a)a 16 page document entitled “Explanation as to Relevance of Subpoenaed Documentation to Submissions made on behalf of the Mother”;
b)a 4 page document entitled “Relevance of Subpoenaed Documentation to Submissions in relation to Ms W”; and
c)a chronology.[4]
[4] For convenience, all four of those documents will be retained on the Court file as Exhibit “M1”
The father’s lawyer produced a 4 page document entitled “Father’s Aide Memoire regarding Subpoenaed Documents”.[5]
[5] Retained on the Court file as Exhibit “F1”
Relevant Law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[6].
[6] Section 60CA
The decision in Goode & Goode makes it clear that the same principles apply whether the decision to be made is interim or final.[7]
[7] See Goode & Goode (2006) FLC 93-286
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [8]
[8] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[9]
[9] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[10] The court must also take into account those of the “additional considerations” that are relevant.[11]
[10] Subsection 60CC(2)
[11] Subsection 60CC(3)
Very often there is a tension between the two primary considerations under section 60CC. The Parliament sought to resolve that tension by enacting the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 which inserted subsection (2A).[12] Courts are now required to give greater weight to the need to protect the child from harm from abuse, neglect or family violence than to the benefit to the child of having meaningful relationships with both parents. However, that subsection only applies to proceedings commenced after 7 June 2012, so that is not mandated in this matter.
[12] Schedule 1, Part 1, item 17
It is my view that each consideration should be given the weight it deserves in the light of the facts, and I am fortified in that view by the judgment of May and Thackray JJ in Mulvaney & Lane,[13] in which their Honours said:
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case….
[13] Mulvaney & Lane (2009) FLC 93-404. Also see Aldridge & Keaton (2009) FLC 93-421 and Champness & Hanson (2009) FLC 93-407
At paragraph 81 of Goode & Goode their Honours [14] said:
In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.
[14] Bryant CJ, Finn and Boland JJ
Other than to say that the word “often” in that sentence could easily be replaced with “almost invariably”, I cannot help but agree with what they said. This case is no exception, and the parents and their lawyers are locked in strenuous dispute about whether or not the father should spend time with the child, even on a supervised basis at the Contact Service. It is very clear that the mother sees a potential risk of harm to the child as the overriding primary consideration under section 60CC; whereas the father sees the benefit to the child of having a meaningful relationship with both parents as the overriding primary consideration.
The father’s medical condition
An unchallenged report dated 9 March 2012 from Dr B, the father’s treating neurologist at the [omitted] Medical Centre[15] shows that the father has “intractable temporal lobe epilepsy” and Dr B has always been keen for him to “undergo surgical assessment, which might cure his epilepsy”. However, the father “has always been reluctant to proceed with a temporal lobectomy”. It appears that “the risk of any major complication of surgery would be of the order of less than 5%”. However, the father did not want to have his “head cracked open” and he was fearful that he could end up “a dribbling mess”.
[15] Annexure “F” to the father’s affidavit filed 21 June 2012
Dr B’s report shows that on a number of occasions the father was advised to curtail his intake of marijuana. The father had revealed to
Dr B in February 2009 that “he smoked one ounce of marijuana every three days, which amounted to 60 cones per day”.
Dr B had been asked for his views about the effect of the father's condition upon his parenting capacity. His response was:
[The father] also spoke warmly of his children. He didn’t ever indicate to me that the seizures interfered with his parenting capacity. The strong feature of the history was the support given to him by his sister, Ms W.
In answer to a question about any observed long term improvement,
Dr B reported:
Unfortunately, I can’t say that there has been any improvement. Temporal lobe epilepsy is a condition that waxes and wanes. Seizures are likely to be triggered by emotional stress, sleep deprivation and poor compliance.
Discussion
It is clear from the documents and from the submissions made to me that the mother is basing her objections to the father spending supervised time with the child at the Contact Service upon;
·a perceived risk to the child arising from potential aggressive reactions by the father at the time of some of his epileptic seizures; and
·a general submission that the father is an unsuitable person to have contact with the child because of his “propensity for violence, lack of respect for authority”[16].
[16] “Explanation as to Relevance of Subpoenaed Documentation to Submissions made on behalf of the Mother” at page 10
The mother appears to base her opposition to Ms W’s presence at the Contact Service upon a belief or perception that “she has been an aggravating influence and has in concert with [the father] perpetrated serious assaults and made very serious threats”.[17]
[17] See page 3 of the document entitled “Relevance of Subpoenaed Documentation to Submissions in relation to Ms W”
Is there an unacceptable risk arising from the father’s medical condition?
While this is not a case of abuse of the child, the cases in relation to risk of child abuse do give some guidance in relation to questions of unacceptable risk generally. In Lindsay and Baker,[18] Bryant CJ said the following that was clearly intended to give guidance in relation to the application of a test of “unacceptable risk”:[19]
The trial Judge discussed at some length, without apparent error, the standard of proof applicable to the allegations by the mother that the father had sexually abused the child and the unacceptable risk question (para 76 - 106). I agree with Finn J that it seems unnecessary for anything to be said beyond the broad general guidance given by the High Court in M and M (1988) FLC 91-979. That said however, the concept still frequently proves to be a difficult one to apply and the description by his Honour in paragraphs 78, 79 and 80 which are repeated below, in my view, provide a useful summary of what is required:
“78. The so-called unacceptable risk test has become the standard used by the Family Court to achieve a balance between the risk of detriment to a child from sexual abuse and other forms of harm and the possibility of benefit to the child of unrestricted contact. Under the High Court's formulation in M v M [(1988) FLC 91-979; (1988) 166 CLR 69], where a court makes a finding of unacceptable risk it is a finding that continued contact might do more harm than good or a conclusion that its perceived advantages are outweighed by the potential disadvantages. However, a finding of unacceptable risk in respect of unsupervised contact does not preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered.
79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.”
[18] (2007) FLC 93-347
[19] Commencing at paragraph 3
Clearly, I must assess the chances and consequences in this matter.
In an affidavit sworn on 25 May 2012, Ms W said this:
4. I am the carer for [the father]. His last hospitalisation for seizures was in January this year.
5. I agree that [the father] has had great difficulty in overcoming the memories of the assault which resulted in his condition. In the past, he told me that he suffered flashbacks of the injuries that he suffered. However, whilst he still has seizures, I have not seen any violent outburst from him in the last 12 months. Immediately after his seizures, he simply seems confused and may use a little profane language; I believe this is largely out of frustration.
In support of the submission that there is a risk to the child arising from the father’s medical condition (and associated aggression), I was referred to voluminous medical and ambulance records. Certainly, those records state that the father has at times been aggressive when suffering from seizures, but nothing in that subpoenaed material suggests that the father has had any violent outburst in the 12 months preceding the swearing of Ms W’s affidavit on 25 May 2012. I am therefore of the view that I must accept what she said about that at face value.
As one would expect with epileptic seizures, it is not possible to forecast exactly when such an event will occur. However, the subpoenaed records appear to suggest that the average frequency of the father’s seizures is approximately once every six weeks. For example:
·a letter between doctors dated 23 July 2007 reported that Ms W estimated that he had approximately 10 seizures in an 18 month period; and
·a discharge summary dated 9 January 2009 refers to his seizure frequency having been approximately once every six weeks.
If the father averages one seizure every six weeks then it is possible to calculate the statistical chance of him having a seizure during a particular two hour period in a week (which is what the father is seeking on an interim basis). I calculate that there is a 1 in 504 chance of a seizure occurring in that particular two hour period each week.[20] That is a percentage chance of slightly less than one fifth of one percent. Put another way, there is a 99.8% chance that he will be seizure free during that particular two hour period.
[20] 6 (weeks) X 7 (days per week) X 12 (two hourly blocks per day) = 504.
Even if the seizures were to occur once every four weeks on average, that would still make the chance 1 in 336, or something slightly less than one third of one percent. Clearly, the statistical chance of the father suffering a seizure at the Contact Service would still be minimal, even on that increased frequency.
It must follow that if the chances of a seizure are minimal, the consequences would need to be great for the risk to be unacceptable.
The various subpoenaed records are very repetitive, but they do refer to some aggression on the part of the father during epileptic episodes. However, they do not show that any other person has been injured during those episodes; the injuries appear to have been to the father himself, and there has been some damage to property.[21]
[21] For example, a broken window.
The subpoenaed records show that on a number of occasions ambulance officers have been content to leave the father in the care of his sister. Those records persuade me that Ms W knows how to handle her brother during and after such episodes and that her presence at the Contact Service would be an advantage if the father is to spend supervised time there. It is quite clear that the manager of the Contact Service was of the same opinion, because I repeat that he suggested that the father’s “sister and carer, be authorised to attend visits” because it “would increase the safety of all children using [the] service, should [the father] have a seizure when using the service”.
I am sure that if the father was to have a seizure in the presence of the child alone, it could be very frightening for her. However, the current application for interim orders is not seeking that the child be left alone with the father. He is seeking time with the child in the presence of a Contact Service supervisor and his sister. In those circumstances, if a seizure were to occur, it seems very likely that the supervisor would remove the child from the vicinity of the father while Ms W would assist her brother.
The father’s past behaviour
It is clear that the father’s unwise use of marijuana has contributed to his seizures. He has been advised about that by his medical practitioners but his compliance with their advice has not been good. That does not reflect well upon him, particularly in relation to his sense of responsibility as a parent. However, it is sufficient at this stage to say that if I was required to terminate children’s relationships with their parents solely on the bases of lack of wisdom and/or marijuana use, I would be terminating a very large number indeed. Clearly, if the father wants to have a meaningful long term relationship with his daughter, he needs to think very hard about whether it is in his interests to continue with his marijuana use.
In relation to the father’s other antisocial behaviour, I am of the view that the mother and her legal team have paid much more attention to the length of the father’s police record than to its content. Unfortunately, that has resulted in an unrealistic sense of proportion. For example, the “Glossary to Subpoenaed Documents” recited verbatim the lengthy “Facts for the prosecutor” in relation to an incident that occurred in 1997 when the father was only 19 years old and for which he was required to perform 84 hours of community service. (Ms W was also involved in that incident at age 18 and she received a conditional discharge to be of good behaviour for twelve months. I will refer to that further below.)
In my view, it is far more relevant to look at the father’s convictions for offences that occurred after the child was born. They are:
a)December 2006 – fail to wear a seat belt as a passenger – fined $110.
b)October and December 2009 – cultivate and possess a controlled plant, possess a thing used for the administration of a controlled drug - all described as “minor offences” – no convictions were recorded on the basis of an undertaking to be of good behaviour for 12 months.
c)December 2009 – possess one box of shotgun cartridges and three centre-fire cartridges – a conviction was recorded, a levy of $20 was imposed and the cartridges were ordered to be destroyed.
d)December 2009 – use of abusive language to police officer – conviction recorded - one-month imprisonment wholly suspended on condition that the father be of good behaviour and commit no offence against a member of the police force for 18 months.
e)March 2010 – unlicensed driver – fined $200.
The matters referred to in the preceding paragraph were all heard in the Court of Petty Sessions, and those at (b) to (d) inclusive were all heard on the same day. In other words, the father has only appeared in court on three occasions in relation to convictions for offences committed since the child was born.
In my view it is an overstatement of substantial proportions to suggest that those convictions show a “propensity for violence” or a “lack of respect for authority” which justifies an order that he not have any contact with his daughter at all.
The document referred to at paragraph 17(a) above places emphasis upon a family violence risk assessment screening tool in relation to
Ms S, the mother of the father’s other children. In my view, I cannot make any finding about that in interim proceedings because the evidence of Ms S is disputed by the father. I also note that in providing the untested information to the person who completed the risk assessment screening tool, Ms S claimed that when she was sheltering at a Women’s Shelter the father “came and smashed the place up”. I see no evidence of that in his police record, and I feel confident that the management of the Women’s Shelter would normally have called the police if such an event had occurred.
In the circumstances, I do not consider that the claimed “propensity for violence, lack of respect for authority” on the part of the father justifies an interim decision that he should not spend supervised time with the child at the Contact Service. It is important to remember that one of the principles underlying the objects of Part VII of the Act is that “children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents …”. In my view, children should not be deprived of that right without strong and persuasive evidence being put before the court.
Ms W’s past behaviour
The document “Relevance of Subpoenaed Documentation to Submissions in relation to Ms W” and the submissions made against the involvement of Ms W at the Contact Service only served to reinforce in my mind that the views of the mother (and possibly her legal team) were out of proportion to reality. For example, in referring to the police reports in relation to the incident in 1997 (referred to at paragraph 47 above), her counsel said:
These documents relate to the submissions that the presence of Ms W … does not diminish the risk posed by [the father], but in fact she has been an aggravating influence and has in concert with [the father] perpetrated serious assaults and made very serious threats.[22]
[22] Relevance of Subpoenaed Documentation to Submissions in relation to Ms W at page 3
That incident occurred more than 15 years ago when Ms W was 18 years old and Ms W was given a conditional discharge on the basis that she be of good behaviour for 12 months.
Certainly, Ms W’s police record does not make good reading, but I find nothing in it that disqualifies her from being available as the father’s carer to assist him at the Contact Service in the very unlikely event that he has a seizure during a visit. In my view, it is important that the manager of the Contact Service considered it desirable that the father’s “sister and carer, be authorised to attend visits with [the father]” because it “would increase the safety of all children using [the] service, should [the father] have a seizure when using the service”.
Conclusions
Unfortunately, I do not have sufficient agreed information to address the additional considerations under section 60CC in any useful way.
The father may have made a mistake by withdrawing from involvement in his daughter’s life, but that should not deprive the child of the rights that she has pursuant to section 60B of the Act. He now wishes to become re-involved and it is to his credit that he has persisted in the face of such trenchant opposition from the mother and her legal team over a significant period of time. In my view, that opposition to supervised visits at the Contact Service has been unjustified.
Unfortunately, it is apparent that the mother’s primary objection to the father having any supervised time with the child relates much more to Ms W’s presence at the Contact Service than to the father’s suitability. I say that because the mother’s solicitor sent a letter to the father’s solicitor and to the ICL on 24 August 2011 which said this:[23]
I refer to recent correspondence in relation to the impending visit at the Children's Contact Service. I note that it was agreed that our client would facilitate supervised time between [the father] and [the child]. As we have previously indicated, our client has reservations about this given [the child]’s expressed reluctance to come into contact with her Father. Despite her concerns our client was prepared to take on board the recommendations of the Independent Children’s Lawyer.
Having reached that agreement, our client is now faced with a demand by [Ms W] that she also be present at the visit. We have read and considered the file note in relation to the discussion with the Contact Service. It is clear from that note that while [the father] was happy to proceed with the visit alone, it is clearly [Ms W] who is insisting on being there.
The relationship which requires re-establishment is the one between Father and Daughter. [Ms W]’s previous involvement was on the basis of the risk to [the child] arising from [the father]’s medical condition. Given that this visit is to be supervised by professionals, [the child] will be appropriately protected and there is no need for [Ms W] to be present.
The subpoenaed material highlights a number of issues in relation to [Ms W]’s own capacity and queries her suitability as an accompanying person or supervisor.
There is no impediment upon [Ms W] accompanying the father to and from the Service. However there is no consent to [Ms W] attending the visit.
The focus should be on [the child]’s needs and the gentle reintroduction to her Father. There has been a significant time of “no contact” and, with respect, [Ms W]’s demands appear to be distracting from [the child]’s needs.
We confirm that our client is ready, willing and able to facilitate time between [the father] and [the child] this weekend at the Children’s Contact Service.
[23] See Annexure “B” to the father’s affidavit filed 21 June 2012
It is clear that the mother’s resistance to supervised time in the presence of Ms W has resulted in delays of nearly eighteen months. That needs to be rectified without any further delay.
The mother’s lawyer submitted that if I decide to make an order for supervised time at the Contact Service with Ms W present, I should make an order that she be in a separate room. I reject that submission for two reasons.
·Firstly, it could defeat the purpose for having her there. In my view, she needs to be immediately available to assist in the unlikely event that the father has a seizure.
·Secondly, I have no evidence that such a separate room is available, in any event.
I have confidence in the good sense of the supervisors at the Contact Service to organise the child’s time with her father in a manner that is suitable to her needs. Clearly, both parties and Ms W will all have to comply with the rules of the Contact Service and any reasonable directions of the staff.
I will make orders to take account of what I have set out above and adjourn the matter to enable supervised time to occur at the Contact Service. In that regard, I will hear from the parties’ lawyers and the ICL about how long that adjournment should be.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Roberts FM
Date: 11/2/13
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