Talbott and Simons
[2010] FMCAfam 1479
•22 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TALBOTT & SIMONS | [2010] FMCAfam 1479 |
| FAMILY LAW – Parenting – interim hearing – supervision – location for supervision – contact centre – nominated supervisor – family report recommendations – Independent Children’s Lawyer recommendations. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 64B, 64DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS TALBOTT |
| Respondent: | MR SIMONS |
| File Number: | SYC 6266 of 2009 |
| Judgment of: | Monahan FM |
| Hearing date: | 10 December 2010 |
| Date of Last Submission: | 10 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Warren Mckeon Dickson Lawyers |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Ktenas Solicitors and Barristers |
| Independent Children’s Lawyer: | Reid Family Lawyers |
ORDERS
THE COURT ORDERS THAT:
Paragraph two (2) only of the interim orders made on 27 October 2009 is discharged and in lieu, [X], born [in] 2005 (“the child”) spend time with the Applicant under the supervision of such person or persons as may be agreed between the parties, or if there is no agreement, the Respondent or Mr M, on the following basis:
(a)subject to paragraph (2) herein, Thursdays from 5:30pm – 8:00pm;
(b)one (1) Sunday per month on the first Sunday of each calendar month from 9:30am – 4:00pm;
(c)subject to paragraph 1(d) herein, every second Saturday from 2:00pm – 6:00pm;
(d)on 25 December 2010 from 9:00am – 11:00am; and
(e)at such other times as may be agreed between the parties.
In regard to paragraph 1(a) herein, commencing on 13 January 2011, and at least once every four (4) weeks thereafter, such time be spent at a child-friendly public place as agreed between the parties (such as a play centre) or, failing such agreement, at [H] shopping centre (“the designated place”), provided that the Applicant does not remove or otherwise take the child from the designated place and the supervisor be permitted to remain in the general vicinity of the designated place for the duration of the time in which the child spends time with the Applicant.
Both parties do all acts and sign all documents necessary to enrol with a Contact Centre as nominated by the Independent Children’s Lawyer for the purpose of allowing the Applicant to spend time with the child at the Contact Centre. Once a place at a Contact Centre becomes available, the spend time arrangements in paragraph 1(c) herein will be replaced by the Applicant spending supervised time with the child at the Contact Centre. The spend time arrangements outlined in paragraphs 1(a), 1(b), 1(d) and 1(e) herein will remain unchanged.
Until a publicly funded place at the Contact Centre becomes available, the parties equally share the costs of using the Centre to facilitate the Applicant spending time with the child pursuant to these Orders.
AND THE COURT NOTES THAT:
(A)Pursuant to paragraph six (6) of the Orders made on 10 December 2010, the Independent Children’s Lawyer has liberty to apply on seven (7) days notice.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Talbott & Simons is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6266 of 2009
| MS TALBOTT |
Applicant
And
| MR SIMONS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in the Family Court of Australia on
19 October 2009 (“the Application”) by MS TALBOTT (“the mother”) against MR SIMONS (“the father”) seeking various parenting orders in relation to the child [X] born [in] 2005 (“[X]”). More specifically the mother is seeking final orders to the effect that:
·the parties have equal shared parental responsibility for [X];
·[X] spend time with the father as determined by the Court, and presumably live with the mother; and
·interim orders to the same effect.
This matter proceeded to an interim hearing on 10 December 2010 (“the interim hearing”).
The mother has filed a number of affidavits in relation to these proceedings and was legally represented by Ms Morgan at the interim hearing. The mother relied upon the following:
·her affidavit sworn 30 November 2010 and e-filed 3 December 2010 (“the mother’s affidavit”);
·the affidavit of Ms B sworn 1 December 2010 and e-filed 3 December 2010 (“Ms B’s affidavit”).
The father filed his response on 3 November 2009 (“the Response”) opposing the orders sought by the mother and is seeking different parenting orders to the effect that:
·the father have sole parental responsibility for [X];
·[X] live with the father; and
·any time spent by [X] with the mother be supervised by the father, the paternal grandmother or a contact centre and that such time be conditional upon the mother not appearing drug or alcohol affected.
The Response is supported by several affidavits filed in these proceedings. The father relied upon the following:
·his affidavit sworn 20 November 2010 and filed 22 November 2010;
·his further affidavit sworn and filed 10 December 2010 (“the father’s second affidavit”)
·the affidavit of Mr M sworn 7 December 2010 and filed 10 December 2010 (“Mr M’s affidavit”).
It would appear that the father commenced his own proceedings by an application filed in the Local Court [omitted] around the time these present proceedings were commenced which were superseded. He was represented by Mr Ktenas at the interim hearing.
By an order made by Registrar Chayna on 30 November 2010 an Independent Children’s Lawyer (“ICL”) was requested for [X]. Ms Reid was subsequently appointed and appeared in that capacity at the interim hearing.
Background
The mother was born [in] 1969 and is currently aged 41 years and, according to the application, the father was born [in] 1975 and is currently aged 35 years.
The parties disagree on whether they cohabitated. The mother asserts they did not. The father asserts that they “lived together on and off from approximately the time of [X]’s birth to September 2006”.
It would appear that the mother was [X]’s primary carer until he came into the father’s care with the knowledge of the Department of Community Services (“DoCS”) [around] September 2009. It would appear that DoCS closed its file on [X] on 13 October 2009.
The matter initially came before Registrar Chayna on 27 October 2009 and on that occasion the parties entered into interim parenting orders that provided inter alia for [X] to live with the father and spend defined periods with the mother, not involving overnight periods, with all times to be supervised by the father or his nominee.
The parties subsequently had an assessment conference with family consultant Ms A on 2 and 12 November 2009 and Ms A produced a memorandum to the Court dated 30 November 2009 with a recommendation for the matter to be transferred to the Magellan List. The matter was then transferred to Judicial Registrar Loughnan, as he then was, on that same day and he made orders as follows:
“IT IS NOTED
1.That the orders of 27 October 2009 remain in places pending further order.
2.That the father envisages that his cousin Mr M will be his nominee in relation to most occasions of supervision.
IT IS ORDERED
3.That by consent the mother also spend time with the child [X] born [in] 2005, under those arrangements between 9am and 11am on Christmas Day.
4.That the proceedings be referred to the Magellan Registrar for consideration of allocation to the Magellan program and if that is not done to appoint the first day of the Less Adversarial Trial at the appropriate time.”
The matter next came before Registrar George on 7 December 2009 and it was determined that the matter was not suitable for the Magellan list because the issue was one of alleged neglect, not abuse.
The matter again came before Registrar George again on 21 May 2010 and she determined that the matter be listed for a “file review” in September 2010. That said, on 22 September 2010, Watts J made an order transferring the matter to this Court and it came before me in my duty list on 22 November 2010 (“the duty list hearing”).
At the duty list hearing orders were made to the following effect:
·Adjourning all extant applications be adjourned to this Court on 10 December 2010 at 12 noon for interim hearing for no longer than one (1) hour; and
·Interim parenting orders, by consent, that essentially provided for Dr L to be appointed as a single expert to report on the welfare of the child and indicated the types of matters that Dr L should comment upon in her report;
And also the following notations:
·The ICL advised the Court today that Dr L, the Single Expert nominated in paragraph one (1) of the Minute, will be meeting the parties and the children in late November 2010 for the purpose of producing an expert report in this matter; and
·The ICL also indicated to the Court that she will be making an application to the Legal Aid Commission of New South Wales with regards to funding for the Father’s share of the costs of Dr L’s report.
The matter consequently returned before this Court on 10 December 2010 with the benefit of Dr L’s report, albeit released at the commencement of the interim hearing.
Issues
The interim hearing focused solely on whether [X] should continue to spend time with the mother under supervision, and if so, at what frequency and under what circumstances that should occur.
The issue of who would be the supervisor of the mother if supervised time was to continue was the main topic of dispute at the interim hearing. The mother proposes Ms B and was supported by the ICL. The father proposes Mr M, who has been the supervisor for some time.
Interestingly, Dr L recommends a supervised contact centre.
Dr L’s report
As stated, an expert report has been prepared in this matter by Dr L, clinical psychologist. Dr L conducted her interviews with the parties, the child and Mr M on 29 and 30 November 2010. She also interviewed Ms D who is a special needs teacher at [J Preschool] where [X] attends.
Dr L appears to have read the affidavits that were sworn, up to and including 30 November 2010. Ms B’s affidavit, Mr M’s affidavit and the father’s second affidavit were sworn after the interviews were conducted.
Dr L describes the background of the dispute, in paragraphs 1 to 3, and the current parenting arrangements in paragraphs 4 to 7. She describes the issues in dispute in paragraph 9 where she states:
“9. The primary issues in dispute (identified by the parents or parties) would appear to be:
· The continuing conflict between the parents.
· The perceived adverse conditions under which current supervision takes place.
· The failure on the mother’s part to visit [X] on a dependable and regular basis.
· The question surrounding the mother’s parenting capacity.
· The lack of willingness of either the father or the mother to not to denigrate the other parent in front of [X].”
Dr L describes her interviews with the parties and the child in paragraphs 10 to 65 inclusive. Of relevance to the interim hearing was Dr L’s record of her interview with the mother in paragraphs 40 through 42 where she states:
“40. With regard to not turning up for supervised visits with [X], the mother asserted that, on occasion, when she arrived at the house of Mr M, he and the father were under the influence of alcohol. She stated that although the visit was meant to be supervised by Mr M, the father would remain there for the entirety of the visit. The mother indicated that Mr M owns two dogs which have the run of the house and often sit on the couch in the lounge. At times one of the dogs had puppies which were also allowed into the house. She stated that she was repelled by the urine stains the dogs had made on the lounge. She felt she could no longer visit Mr M’s house due to the lack of hygiene and the fact that sometimes Mr M’s mates arrived and tried to “chat [her] up”. Moreover she felt that Mr M and the father were laughing at her. She described the house as “cold” and “freezing” and “not a happy place.”
41. The mother advised that she had informed Mr M that she no longer wished to visit [X] at his place as they had already watched all of his movies and DVDs. She apparently asked Mr M if could he accompany her and [X] to a park but he refused. She claimed that whenever she took her daughter, [Y], to visit [X], “[Y] hated it.”
42. The mother claimed that, as an alternative to attending Mr M’s place, the father forced her to meet with [X]at [H] shopping centre. She stated that it was unacceptable to meet at these two places every Thursday. She would follow [X] and his father or Mr M around the shopping centre and it made her feel like a “puppy dog” or she complained that during her visit the father would play with [X] instead of letting her play with [X] and then she felt like “hanger on”.”
Dr L describes her interview with Mr M in paragraphs 61 to 64:
“61. Mr M indicated that the mother has only turned up on three or four weekend occasions. She has not informed him to say she was not coming. [X] apparently watches the front door and listens to cars stopping on the road hoping it may be his mother coming. He usually ends up waiting 45 minutes for his mother to turn up. When the father rings her the mother just says she is not coming. She usually gives “lame excuses” such as having to take one of her children to soccer.
62. Mr M commented that [X] is excited when waiting for his mother because he would like to see her. When she has come they have watched videos and played a few games. Mr M reported that he had not seen the mother bringing any gifts or treats for [X].
63. With regard to his place smelling of dogs, Mr M acknowledged that he had 11 puppies from each of his two dogs. He states that he keeps his place as clean as possible but when the pups are there you cannot remove the smell.
64. Mr M feels that [X] and his mother should meet at a contact centre for supervision. He does not believe that [X] would be safe if one of the mother’s friends or relatives were supervising because they would be persuaded to leave them alone without supervision.”
Dr L provides an extensive evaluation of her interviews and observations in paragraphs 67 to 88. Paragraphs 83 to 88 are particularly noteworthy where Dr L states:
“83. Next year [X] will have to meet new challenges and adjust to disruptions from the routine established for him in 2010. Starting primary school means that he will again be removed from familiar people, environments and routines. It will be important for him to experience familiarity and dependability on the home front. For both parents to contribute to his stability and security. [X]’s carers at both pre schools have confirmed that his stable home life during 2010, cared for by his father and the paternal grandparents, has contributed to his emotional and cognitive development. In order to potentiate his transition to primary school his family life should continue to feel safe and secure thus continuing to live with his father and the paternal grandparents would be in [X]’s best interests.
84. It is important for [X] to have a relationship with both parents. He would benefit from spending quality time with his mother on a regular basis. However, given his mother’s past difficulty in parenting [X], I would recommend that as long as [X] remains dependant on her for his safety, it would not be in the best interests if he spent unsupervised time with his mother. Given his mother’s complaints about the set up of the supervised visits during 2010 I consider that it would be preferable for her to spend time with [X] at a supervised contact centre until such time as [X] becomes more verbal and independent and/or the mother parenting skills improve.
85. With regard to the parent’s proposals, I consider that it is in [X]’s best interests any changes he undergoes in the near future be kept to a minimum. [X] has progressed quite well in the home of his father and paternal grandparents and it is recommended that he remains living there possibly spending weekends with his father in the flat [in Suburb L].”
86. The mother’s proposal that [X] spend every second weekend at her place with Ms B, whom [X] does not know, is, in my opinion, introducing too many changes and risks. The mother’s new partner, who may be present at the mother’s home, is another person who is unknown to [X]. I consider that the mother’s and [X]’s relationship would be optimised if the mother and son were to meet regularly and to get to know each in the safe and supervised setting such as is afforded in a supervised contact centre. The mother could spend time with [X] at the contact centre on alternate Saturdays for six months or for a total of 13 Saturdays. The relationship could be maintained between visits with regular twice weekly telephone calls from the mother to [X].
87. At the same time it is highly recommended that the mother undertakes weekly and ongoing counselling sessions aimed at improving her mental health and basic parenting skills. The mental health worker could then assess if it was safe for the mother to pick [X] after school for a short visit, say 3 pm to 5 pm at home. I would recommend that at first these home visits should be supervised. By this time [X] would be older and would be able to give a better account of the time spent with his mother.
88. As the parenting of [X] has been such a fraught area in the past it is difficult to predict how [X]’s and his mother’s relationship will proceed beyond the next 12 months. However, [X]’s safety will be assured if he spends supervised time with his mother until he is older and less vulnerable than he is now.”
Finally, Dr L provides her recommendations in paragraphs 89 to 94 as follows:
“89. That [X] live with his father and the paternal grandparents.
90. That [X] spends time with his mother on alternate Saturdays at a supervised contact centre for a six month period or 14 alternate Saturdays.
91. That his mother may telephone [X] twice weekly.
92. That the mother attend ongoing individualised counselling session to assist with mental health and parenting skills.
93. That, based on the counsel’s assessment and following the six month’s supervised Saturdays at a contact centre, the mother spend supervised time with [X] after school between 3 pm and 5 pm at her home.
94. That the paternal grandfather pick up [X] from the mother’s place at the conclusion of the weekday visit.”
Agreed and disagreed facts and proposals
The parties agree or are not in significant disagreement that [X] should spend time with the mother but that such time should remain supervised in the interim period. Although that may not be the wish of the mother that was certainly her proposal.
The parties indicated they were in disagreement, however, over the following:
·who should facilitate the supervision of [X]’s time to be spent with the mother;
·the father supports Dr L’s recommendations but it is clear, at this stage, that the mother and ICL, do not.
The ICL’s proposed minute of order seeks orders to the following effect:
·[X] spend time with the mother:
a)each Thursday, between 5:30pm and 8:00pm;
b)alternate Saturdays from 2:00pm to 6:00pm, except Christmas day which would be from 9:00am to 12noon; and
c)the first Sunday of each month from 9:00am to 4:00pm.
·Changeovers occur at [H] shopping centre.
·This time to be spent is conditional upon several factors, including a condition that it be supervised by the mother’s proposed supervisor, Ms B.
This proposal by the ICL is supported by the mother and is opposed by the father.
The father supports the family consultant’s recommendations but otherwise seeks the retention of the current supervised spend time arrangements. He does not wish to continue as a supervisor and seeks that Mr M, continue in that capacity.
The parties’ submissions
The solicitors for the parties and the ICL each gave the Court submissions. In addition, the mother provided the Court with a written outline of case document.
The ICL confirmed to the Court that unfortunately the maternal grandmother was unable to offer herself as a suitable supervisor as she lives in F town]. While the ICL acknowledged the recommendations of Dr L to use a contact centre, the reality was that it could take up to six months to secure a spot and that that created a problem about the interim arrangements that were needed. The ICL supported Ms B as a supervisor and considered the frequency of visits proposed and the restraints to be put in place were in [X]’s best interests until the Court could hear the matter on a final basis. The ICL saw the ability of the mother to be able to spend time with [X] “in a relaxed and calm environment” would be beneficial to [X].
Ms Morgan, for the mother, indicated that Ms B was present in Court at the time of the interim hearing and was suitable as supervisor. She was prepared to provide any necessary undertakings to the Court and on page 4 of Ms Morgan’s her written submissions she states:
“On an interim basis the mother is seeking that her time be supervised by her nominee Ms B so that she may have significant time with the child. The mother states that she is unable to spend significant time with the child under the father’s supervision. The mother is seeking a variation of order 2(c) of the interim orders which would allow her to spend the entire Saturday with the child every second weekend and would mean that on the first weekend of the month she would be able to spend time with the child on both days of the weekend. The mother lives in [suburb J] and the father lives in [suburb L]. This is a short journey. The mother and the supervisor state that they are able to pick the child up from the father’s residence at the commencement of the scheduled time and make the child available for the father to pick up at conclusion. The variation the mother seeks is reasonably practicable.”
On page 7 Ms Morgan states:
“The mother has demonstrated that she is committed to improving her parenting skills and securing substantial significant time with the child so that they may develop a meaningful relationship. The mother has undertaken a parenting course, submitted to voluntary drug tests and undertaken counselling sessions to assist her with her learning disability. The mother has also sought to transfer from her former residence, at the recommendation of the Department of Community services [these steps are outlined in paragraphs 10 to 12 of the mother’s affidavit].”
The father submits that since separation the mother has constantly been late or not shown up at the time that she is meant to spend with the child. The mother states that this is not the general pattern that has occurred but rather has occurred on certain occasions because of her discomfort at being around the father, paragraph 51, or on other occasions when she was so distressed as to the father’s conduct towards her, paragraph 37 in his affidavit. The mother also submits that the father also changes or cancels times with the mother because he has work or other commitments, eg paragraph 62 of the mother’s affidavit.”
Mr Ktenas, for the father, referred to various paragraphs of Dr L’s report making particular reference to paragraph 86, as quoted above. Mr Ktenas submitted that there is “real conflict” between the father and Ms B and questions Ms B’s suitability and independence as a supervisor, given the allegations involving Ms B’s son. Moreover it was submitted that [X] does not know Ms B.
Mr Ktenas indicated that Mr M was also present in Court and was prepared to continue in the role of supervisor despite the mother’s untested allegations. The father also supports the use of a contact centre and will be prepared to financially secure a paid spot but considered that the costs should be equally shared.
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). Parenting orders are defined in s.64B of the Act. Parenting orders deal with where a child is to live, the time the child is to spend with another person or otherwise allocate parental responsibility in relation to the child. Section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.”
Section 60CA through to s.60CC of the Act deal with how the Court determines the best interests of a child. Most relevant to this interim hearing decision are the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3) where relevant.
The Full Court of the Family Court decision of Goode & Goode (2006) FLC 93-286 (“Goode”) guides the Court’s approach to making interim decisions and interim orders in relation to parenting disputes. At paragraph 81 of the decision the Full Court stated:
“In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests for the child.”
Clearly, this matter is such a case. More specifically it raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the evidence being presented by the parties to the Court is not being tested by cross-examination. That said, again at paragraph 81 of the Goode decision, the Full Court went on to state that “the legislative pathway must be followed.” In other words the relevant provisions of the Act post the 2006 shared parenting amendments must be followed at an interim hearing.
It would appear that there is considerable disagreement, distrust and indeed, animosity between the parties in this case and no doubt the history of the matter will be the subject of evidence and cross-examination in the final hearing should such be needed.
Parental responsibility
There is no order allocating parental responsibility that has been made to date, furthermore the Court notes that the ICL is not seeking any such order at this stage. The mother is seeking an order for shared parental responsibility. This issue did not feature in any of the oral submissions made at the interim hearing given that the focus was on the question of the appropriate supervisor.
Section 61DA of the Act incorporates the presumption that it is in the best interests of the child concerned for the child’s parties to have equal shared parental responsibility when making a parenting order. That said, s.61DA(2) of the Act makes it clear that the relevant presumption does not apply if there are reasonable grounds to believe there has been abuse of the child or family violence. There are untested allegations of abuse in this case.
Moreover, under s.64DA(4) of the Act the presumption may be rebutted if applying it would be contrary to the child’s best interests. Such interests are determined by reference to the matters in s.60CC of the Act. Also of direct relevance in an interim hearing is s.61DA(3) of the Act which states:
“When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.”
This particular provision was also discussed by the Full Court in Goode at paragraph 78 where the Court accepted:
“…that s.61DA(3) of the Act provides a discretion not to be exercised in the broad exclusionary manner but only in circumstances where limited evidence may make the application to presumption or its rebuttal difficult.”
This is relevant in the case. The Court does not propose to make any order for parental responsibility today in this interim decision. As a consequence, s.65DAA is not triggered.
Returning to paragraph 82 of Goode, the Full Court sets out the approach that this Court must take in determining cases at an interim hearing. The Court is required to consider and identify:
·the competing proposals;
·the issues in dispute; and
·identify the agreed and uncontested relevant facts.
These have all been considered and set out above.
Primary considerations: s.60CC(2)
Firstly, the Court is required under s.60CC(2)(a) of the Act to consider the benefit of a child having a meaningful relationship with both of a child’s parties. However, it should be noted that meaningful does not mean equal, though the provision clearly signifies that both parents should be involved with their child and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is the right of a child’s.
Consequently, the Court will in all likelihood need to give some considerable weight to this factor at the final hearing should it be needed. That said, in this case, both parties and the ICL agree that it is in [X]’s best interests to have a relationship with the mother but also accept that at this time such a relationship requires supervision. Albeit one imagines with reluctance on behalf of the mother.
Secondly, the Court is required under s.60CC(2)(b) to consider the need to protect a child such as [X] from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence. There is no doubt that it would be in [X]’s best interests to develop a meaningful relationship, not just with the father, but also with the mother. This needs to be balanced, however, in protecting a child such as [X] from any physical or psychological harm and the like.
Clearly there are issues here warranting investigation and the Court needs to tread cautiously in the interim arrangements that would be necessary. The issue of [X] spending time with the mother in a supervised setting is the major issue in this case.
Contact centres play a crucial role facilitating children spending time with a parent in circumstances where there is a risk of harm proven or yet to be determined in relation to a child. Contact centres are also subject to competing demands on the public purse with the consequence that unless the parties can afford a privately run contact service or a private place within a publicly assisted contact service they will have to wait considerable lengths of time to secure a place or be prepared to travel great distances to obtain them.
That said, the Court notes that the father is agreeable to contribute to the cost of a paid spot should that expedite the availability of a contact centre. As stated during the course of the interim hearing, contact centres do not just provide a safe environment for the child they also provide valuable information and assistance to the parties and can assist a party to obtain unsupervised time.
Additional considerations: s.60CC(3)
Firstly, it is noted that the “views of the child”, while significant, would be somewhat difficult to determine in this case given that [X] is still very young. Nevertheless, at paragraphs 20 to 25 Dr L describes her interview with [X] as follows:
“20. [X] presented as a slim, neatly dressed and well groomed boy of 5 ½ year of age. He looked healthy and fit. He was carrying a backpack on his back which provided for the day’s food and drink needs. Despite his formal attire, [X] seemed quite happy to run around and lie on the floor to race his cars.
21. [X] was asked, but refused, to draw a picture of his family. Even his father could not persuade him to do so. [X] could not explain his reluctance. It may have been because his family has been so fragmented since the parents’ separation that the does not have a concept as to who is currently in his family. In the past year since he has been living with his father he has seen his mother and half-siblings irregularly.
22. With regards to [X]’s speech, I could not understand everything he said. His father, who is familiar with [X]’s speech, was asked to help out whenever he was in the room. I estimated that I could only understand about 50% of his speech.
23. On arrival the father informed that [X] did now know his mother would also be coming. When [X] was given the information about his mother, no expression registered on his face. He appeared neither pleased nor excited but that may have been because [X] had recently seen his mother on the preceding Thursday. [X] asked me whether his mother would be bringing [Z] and [Y], his two-half siblings. When I indicated that she probably would not be bringing them because they were at school [X] volunteered that he does not like [Z] because [Z] ‘bashes me up’.
24. [X] was shown cards depicting bears with happy or sad facial expressions and correctly identified a bear which looked sad. He shared that sometimes he may feel like a sad bear. However, he could not say what it was that makes him feel sad. In response to more probing questions he said that he is happy most of the time, but when asked what sort of things make him happy again, he either could not or would not answer.
25. I found [X] to be intelligent, curious, bright and inquisitive but easily distracted and difficult to engage. When his interest was not focused he tended to become loud and noisy which may also be a useful way, for him, of gaining attention.”
As to the “nature of the relationship between the children and each of the parties”, again we have different stories here and that evidence would need to be tested.
As to the “willingness and ability of each of the children’s parties to encourage a close and continuing relationship between the child and the other party” that is a crucial factor here. The mother asserts that the father has not been willing to facilitate a close relationship. That, of course, is denied by the father.
As to the “extent to which each of the child’s parties has fulfilled or failed to fulfil their responsibility as a parent”, again we have different stories here. These stories need to be tested.
The Court is also required to consider the “likely effect of any change in the child’s circumstances”. Clearly the proposals of the mother and the ICL and the recommendations of Dr L require change. However, it is also clear from Dr L recommendation at paragraph 85 of her report that future changes be kept to a minimum.
As to “any other fact or circumstances”, the Court has noted that there appears to be friction between the father and Ms B, and friction between the mother and Mr M.
Conclusion
The Court is being asked to change the current parenting orders in advance of a final hearing. Given the orders were made over a year ago and the parties are yet to receive a final hearing date it is not an unreasonable request.
Having considered the submissions in light of the available evidence and the relevant statutory provisions the Court does not consider that the proposed minute of order sought by the ICL would be in [X]’s best interests at this time.
It is clear from Dr L’s report that continued supervision by either Ms B or Mr M was considered by Dr L and she nonetheless recommended supervision at a contact centre. Whilst the Court acknowledges and understand the concerns about the probable delays in obtaining a contact centre, Dr L’s recommendations are clear.
Consequently I am satisfied, that until further order, the recommendations of Dr L should be implemented where possible subject to an outcome that maintains the current time that the child spends with the mother. In other words, the contact centre would replace the current spend time orders on Saturdays.
Until a contact centre can be obtained, all the current parenting orders will continue. Such times will of course be supervised by a person as agreed or, failing agreement, by the father or Mr M. The time will take place at a place as agreed or, failing agreement, at the father’s home or Mr M’s home.
The parties should continue to search for a supervisor that they can agree upon. If such is achieved then the parties may approach chambers with a signed minute of order to reflect that outcome.
Furthermore, I think it would be in [X]’s best interests to have some variation in the range of activities that he currently enjoys with the mother. For example, subject to any agreement to the contrary, there would be benefit for the existing Thursday times to be spent, at least once a month, at a play centre or, although the mother doesn’t appear to agree, a shopping centre. There are a number of play centres that are in the southern suburbs and in particular in and around the [H] area. The Court, however, is unaware whether they are open on Thursday evenings. There is a “[Children’s play centre]” at [H] shopping centre however, according to its website, it is only suitable for children up to the age of five. It goes without saying that such time would also need to be supervised and if Mr M were unable to do so, then the father would have to do so in the absence of an agreement as to a suitable supervisor. I appreciate there would be a cost associated with this and that burden would normally fall upon the supervised parent, i.e. the mother.
I reserve the right to settle the reasons for this interim decision.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate:
Date: 7 February 2011
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