TALIA & HILLGROVE

[2009] FamCA 1147

FAMILY COURT OF AUSTRALIA

TALIA & HILLGROVE [2009] FamCA 1147

FAMILY LAW – CHILDREN – Case management of issues – Further time spent – Changeover and supervision – Further updated Family Report

Family Law Act 1975 (Cth)

APPLICANT: MR TALIA

RESPONDENT: MS HILLGROVE

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 819 of 2004

DATE DELIVERED: 17 NOVEMBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 17 NOVEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS HANNAN

SOLICITOR FOR THE APPLICANT: MEERKIN & APEL

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR DUNSTAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: BOWLEN DUNSTAN & ASSOCIATES PTY LTD

Orders

IT IS ORDERED:

1. THAT paragraphs 1.1 and 1.4 of the Orders of Watts J made 22 September 2008 be discharged.

2. THAT until further order the child F born … March 2003 spend time with and communicate with her father as follows:

   (a)on Sunday 22 November and 6 December 2009 from 12.30 p.m. until 5.00 p.m. inclusive;

   (b)from Sunday 20 December 2009 and on each Sunday thereafter until and including Sunday 14 February 2010 between 12.30 p.m. and 5.00 p.m.;

   (c)such telephone contact or other times as the parents are able to agree.

3. THAT changeover take place at the front gate (but not inside the property line) of the mother’s property at B Street, C and the father together with his brother are to attend punctually for collection and return of the child at the appointed times.

4. THAT all of the father’s time spent with the child is to be supervised by M and N Talia and is to be taken at a venue in the presence of the two daughters of that family.

5. THAT at all times the child is to travel in a motor vehicle with a child restraint seat and seatbelt properly fitted.

6. THAT the mother of the mother (the child’s grandmother) not be present at or attend changeover as ordered in paragraph 3 above.

7. THAT until further order the mother and father be and are each hereby restrained from:

   (a)denigrating the other, or members of the other’s family, in the presence of or hearing of the child;  or

   (b)discussing these Family Court proceedings in the presence of or hearing of the child or allowing any other person to engage in any such conduct.

8. THAT until the adjourned hearing date the father be and is hereby restrained from consuming alcohol during any time spent with the child or within twenty-four (24) hours of the commencement of such period.

9. THAT the father undertake any reasonably requested supervised urine drug screen within twenty-four (24) hours of a request to do so by the Independent Children’s Lawyer and provide the test results forthwith upon receipt thereof to that party.

10. THAT the Family Consultant, Mr E, prepare an updated s62G(2) Family Report specifically concentrating upon the implementation of these orders, the supervised time therein provided to the father and otherwise an assessment of the need for ongoing supervision and the willingness and co-operation of the parents in compliance with these orders and generally any other matter of and associated with the best interests of the child and that such Report be made available to the Court and all parties five (5) working days prior to the adjourned hearing date.

11. THAT all extant applications be otherwise adjourned to 10.00 a.m. on 18 February 2010 before Young J.

12. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

13. RESERVE liberty to apply on short notice to the mother should there be a necessity to apply for a passport in the name of the child.

14. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the father and solicitor appearing as counsel for the Independent Children’s Lawyer.

IT IS NOTED:

A.THAT an interpreter of the Arabic language was at court and requested by the father but counsel for the father indicated that such a person and such assistance was not required and therefore will not be ordered by the Court for future hearings.

B.THAT the mother raised with the Court a request for the issue of a passport for the child, notwithstanding the father’s refusal to sign such application, but as there was no formal application before the Court and the facts surrounding any intended travel date and circumstances are unknown that matter was not dealt with this day.

C.THAT the father’s brother, M Talia, is to ring the mother and the mother will accept the telephone call as to circumstances of and associated with the wellbeing and safety of the child whilst spending supervised time with the father.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 819 of 2004

MR TALIA

Applicant

And

MS HILLGROVE

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the matter of Talia and Hillgrove, the issues before me relate to child and parenting orders in respect of the only child, F, born in March 2003.  This child is six and a half years of age and has always lived with her mother.  The matter has a lengthy history in court, proceedings first being issued on 17 March 2004, and it has meandered through the court process in the following years.  There was a lengthy period between March of 2005 and September of 2006 when the file was inactive and otherwise various periods where litigation was not ongoing.  Generally, however, for the bulk of this child’s life, the parents have been unable to discuss, agree or have any meaningful interaction with each other.  The mother appears in person, Ms Hannan of counsel appears for the father and Mr Dunstan is the appointed Independent Children’s Lawyer. 

2. The operative order as at this day is that made by Watts J on 22 September 2008, and pursuant to that order, the father has two hours supervised time spent with his daughter at Y Contact Centre each fortnight and otherwise as agreed between the parties.  There is, of course, no agreement on other times in this case, and indeed, one of the mother’s complaints is that the father does not ring or have appropriate telephone or other time spent with his daughter.  In August of 2009, a family consultant, Mr E, prepared a child and parents issue assessment in this matter.  I have re-read that document today.  Mr E has made almost the whole of the day available to this family, has conferred and endeavoured to mediate out of court his morning, and otherwise has been in court throughout this interim hearing and, indeed, has given, on oath, some assessments and recommendations for the family and being cross-examined. 

3. Both the mother and father have completed a parenting questionnaire and I have read each document.  Otherwise, there is a detailed report from a Ms H, who is the co-ordinator of the Y Children’s Contact Service.  That report detailed seven supervised visits between 2 August and 7 October of this year.  I have read that report.  Mr E has read the report and has detailed his observations thereupon to the court.  There are matters that are clearly dealt with in the report, such as the father’s regular attendance, his commentary with his daughter and observations of he and his daughter and there is certainly no concern highlighted by that report from a very experienced co-ordinator at the coal face of so many of parent and children issues.  The immediate issue that arises today is that Y Centre can no longer make any services available to this family by way of supervising time spent.  The family’s allocation has been used up. 

4. The submissions of the father through his counsel are that there should be ongoing time spent, and he requests each Sunday between the hours of 12.00 noon and 6.00 p.m.  Otherwise, additionally, he requests birthdays and a further assessment of time to be spent in the near future.  The mother’s position is in stark contrast.  Whilst she has no issue or complaint with the supervised time at Y Centre, her position to the court is that, as a mother, she cannot and indeed will find it virtually impossible to bring herself to separate from her daughter, to encourage the daughter to spend time with her father, or otherwise be involved with any members of the extended family of the father.  The independent children’s lawyer has made a recommendation that time be spent on an ongoing basis each Saturday between 11.00 a.m. and 4.00 p.m. with collection to and from the Y centre, and otherwise as agreed.  

5. Additionally, it is suggested by the Independent Children’s Lawyer that both parties be restrained from denigrating the other or discussing any proceedings in the presence of the child.  Further, it is suggested that the father, in response to concerns raised by the mother, be restrained from consuming alcohol during or within 24 hours of any period spent with the child and, if and when called upon so to do, provide a drug screen at the request of the Independent Children’s Lawyer.  The father through his counsel has indicated his consent to those injunctive orders. I have some difficulty in understanding whether the mother actually wants those safeguards in place, but as they are not objected to and given the issue raised by her in her questionnaire and for the short term only, I will make that order.  There is a clear benefit for these parents to have a civil demeanour to each other, though I suspect that is going to be near to impossible to achieve, given the body language and attitude of both parents. 

6. There are a number of difficult issues in this case.  The first question, ultimately, is that all evidence must be considered in the light of the best interests of the child.  In that context, I need to determine whether there is to be an ongoing period of time that the father would spend with his daughter.  In the context of the child assessment report as updated by Mr E, balancing the recommendations of the Independent Children’s Lawyer and particularly giving heavy reliance to the observations on each of the seven supervised visits at the Y centre, it is a very clear outcome that there does need to be time spent between father and daughter.  The real issue is what time and on what occasions and, in the interim, supervised by whom, would provide an environment best for the child.  I will not permit the wife’s mother to supervise any time. 

7. That simply would be inflammatory, it would be extremely difficult for the grandmother to spend time alone with the father and/or his family.  It would create tension and certainly not be appropriate for the child.  As I endeavoured to explain to the mother, the court has no available list of good Samaritans ready and willing to volunteer to supervise.  The primary obligation is on parents.  They are the mother and father of this child.  They each have a responsibility to her to provide her with a knowledge and relationship with the other.  Clearly, in this case, the relationship of mother and daughter is exceptionally close. The relationship of father and daughter is to be encouraged and developed in the best interests of the child.  The father proposes that his brother, M, and his wife, N, spend all time together with the father and the child and do so in the presence of their two daughters who are now aged five and a half and four years of age.

8. The father’s proposal, as I understand it, is that at all times the child, F, will be with him and his brother’s family either at their home or otherwise together in appropriate and safe circumstances.  It is a concern of the mother that I emphasise in these reasons that at all times safety of the child is to be the priority.  There must always be a child booster seat in the car that is appropriate and with proper seatbelt and at all other times facilities must be such as to maximise her safety and wellbeing.  Whilst I well understand the mother has no relationship with the husband’s extended family, she has agreed to receive a telephone call from the husband’s brother and discuss, in a civil and polite manner, appropriate circumstances for the commencement of time to be spent.

9. I will formally require that time to be supervised by M and N Tatlia, pending the adjourned hearing date, which I will fix before me on 18 February 2010 at 10.00 a.m.  I again emphasise that at some time, this matter must be out of court, and the parties take responsibility for their own child.  I will, on that return date, have an updated family report prepared by Mr E, but largely limited to the implementation and outcome of these orders made today.  The question of ongoing supervision and a future assessment of what orders are appropriate for the child. 

10. There are many related issues that touch upon a meaningful and successful outcome of this family arrangement.  On the one hand, it is suggested that Y Centre can be available for collection and drop-off purposes.  That does seem to me inappropriate as it requires extended driving and involves that third party contact centre.  A more meaningful and workable outcome will be for the father, and always in the company of his brother, to drive to but not enter into the mother’s home at B Street, C, and therefore the child to walk from the mother’s home to the car at the commencement, and at the conclusion to alight from the car and return into the mother’s home.

11. If necessary, the brother may assist, and if that arises out of the discussion to be had between the mother and the brother, as earlier identified in these ex tempore reasons, commonsense needs apply, but I am of concern that is of limited measure and availability in this case.  The grandmother should not show herself or be involved, in any way, in handover at the commencement or conclusion, as I am concerned that may only increase tension.  Likewise, the father must respect the mother’s property, not enter onto the property, and there must be no argument, abuse or incident in the presence of the child.  Again, that is commonsense, and hopefully that can be understood by these parents.

12. In the submissions before me, numerous other issues have been floated.  The father, of course, denies any abuse of alcohol or taking of drugs and his counsel’s concession in that regard is noted as only being without any prejudice or admission, and that is a matter that I record in these ex tempore reasons.  I am not going to provide any time for birthdays, either the father’s birthday or the child’s birthday in the upcoming period, though I note the child’s birthday falls outside of the return date of this matter.  The complaint of the mother in her questionnaire relates to non-payment of child support, though the father is able to provide, and on occasions, it is clear from the evidence, provide it a hundred dollar note to the child on the Y Centre supervised occasions.

13. The father’s obligation, given that he is assessed, is to pay child support, and that is a matter that I will particularly highlight and inquire on the return date.  The father is on notice that he must fulfil his financial obligations as a parent.  The father is a taxi driver who works substantial shifts Wednesday to Saturday, inclusive, and thus must have the earnings to pay the somewhat modest child support, as assessed.  Given that I have determined in the best interests of the child that there will be time spent by the father, and that it will be supervised by his brother and his family, and that collection will be to and from the front gate of the mother’s residence, the primary issue is what time will be spent and on what days.

14. I do understand that the mother has submitted to me of the religious instruction on Sunday.  The mother is a very devoted and practising Muslim.  She clearly holds the faith as being very important to her and to her family.  The father, to all intents and purposes, is not active in his practice of religion, though, in no way is that a criticism.  It is a lifestyle choice.  That is but one of the ongoing issues in this child’s upbringing that is going to create more issue and tension.  Sunday is the appropriate day for time to be spent.  I understand the father is working on a Saturday.  The father’s request is 12 until 6, inclusive.  6.00 p.m. is simply too late, even in daylight saving hours. 

15. This child has, to date, spent two hours on fortnightly periods with the father.  I will increase the periods to weekly, but I will graduate the starting date of that time spent and it will be from 12.30 until 5.00 p.m.  The time spent will initially be on Sunday 22 November and Sunday 6 December, and then weekly from Sunday 20 December.  When the matter comes back before me on 18 February, I will review all of the occasions ordered, and what is ordered thereafter will depend upon the child, the child’s acceptance of and adapting to this timetable, the regularity of the father in attendance, and the cooperation of the mother.  The mother must be under no misunderstanding that once I have made these orders, I will not, in the interests of the child, accept or tolerate any disobedience. 

16. I say that bluntly, so the message is understood by the mother.  As to the passport of the child, the mother has raised in court, today, that the child has no Australian passport.  The mother is likely to travel to Kuala Lumpur, Malaysia, for work-related purposes, but could not give the court the date or time.  The mother has advised the court that she owns real property in Australia, will always live in Australia and sees the future of her child in Australia where her parents reside.  On face value, I accept what the mother says, but to obtain a passport for the child and to take the child out of the country, she must better prepare her evidence and at least have proposed itinerary bookings and travel plans. 

17. It may be in this case, given the opposition of the father, that it would be appropriate when not travelling that the Registrar of the Family Court would hold the child’s passport in safe custody.  However, if the mother properly documents a travel plan in the same blunt way, I record that the father should not oppose simply to be difficult the issue of a passport.  On what I have heard, today, without full evidence, I would certainly require either his signature, or I would order the dispensation of his approval, so that the child could travel without the father’s approval.  However, I do not make that decision, but that is a matter to be followed up by the mother, who will ascertain when and if she is to travel and with the assistance of the Independent Children’s Lawyer, submit hat passport to the father’s solicitor for his signature.

18. If that is refused, and if the travel plans are both genuine and urgent, then a Registrar can arrange for this matter to be listed before me, if I am available, and I will make both the order and consequential orders, if appropriate, and without concluding any aspect of what is or may be a just order.  In my discussions with the parties, I have touched upon the requirement of the mother to ensure that there is an asset in Australia that is not dealt with, and/or available if need be for enforcement purposes.  That does not seem to present any issue or difficulty, as I understand her approach to this matter, and likewise, if in future years she desires to take her daughter to Disneyland or to travel the world, there need be some commonsense arrangement, always subject to the proper return of the child to Australia. 

1. For those very brief reasons delivered ex tempore, and particularly having regard to the provisions of the Family Law Act, and dealing what is in the best interests of the child, I conclude that those orders are proper, and need to be made for the child and to facilitate time spent with her father.  I record that I have particularly had regard to the primary considerations of section 60CC(2) and the benefit to the child of having a meaningful relationship with her father.  On the evidence before me, there is no physical or psychological harm likely to arise from such time spent, and there is no family violence order or issues detailed in this case.  I otherwise have had further insight into the additional considerations and, in particular, as to subparagraphs (b), (c), (e), (f), (i) of subsection (3) thereof. 

2. I emphasise that my orders are interim and to last only but a few months when Mr E will bring his professional and comprehensive overview to the court on the implementation of these orders and significantly upon the approach, attitude and willingness of the parents to work with these arrangements.  It is very easy to create difficulties, and I trust that neither parent will bring about that scenario.  If there are issues, I will deal with them on the next time.  I record, also, that I reflected upon a time spent with arrangement less than every Sunday. 

3. In the longer term, that would seem to me to be particularly onerous to the mother and a more realistic assessment may be three in four Sundays or some other arrangement, as is appropriate, but effectively for the months of late December, January and early February, I have provided a constant and consecutive period of Sundays to try and develop some routine in this case.  I want to emphasise that punctuality is important and one of the matters to be assessed by Mr E, and which I will assess, is how regular and punctual the father is on collection, and above all else, on return. 

4. I would take a very, very dim view if this child is not returned punctually at 5 o’clock and any over-holding or delay to cause pressure to the mother will almost certainly have some consequences in future orders.  If the father cannot accept that, then I will change the order in future.  For those very brief reasons, delivered ex tempore without leaving the bench, I now propose to announce orders in this matter. 

5. There will be reserve liberty to apply on short notice to the mother, should there be a necessity to apply for a passport in the name of the child.  It is noted:

   (a)An interpreter of the Arabic language was at court and requested by the father, but counsel for the father indicated that such a person and such assistance was not required and will not be ordered by the court for future hearings.

   (b)The mother raised with the court a request for the issue of a passport for the child, notwithstanding the father’s refusal to sign such application, but as there was no formal application before the court and the fact surrounding any intended travel date and circumstances are unknown, that matter was not dealt with this day.

   (c)As per the ex tempore reasons for judgment, the father’s brother, M, is to ring the mother and the mother will receive the telephone call of the brother as to circumstances of and associated with the wellbeing and safety of the child whilst spending supervised time with the father. 

6. What I have not made an order for is for the husband’s brother to ring the mother, but that has to happen.  Now, I say again, there is a point in time where this matter will simply not have all of the times available to it in the courts, and parents have to understand they have got a duty to implement matters that are proper, but that will no doubt be seen in different eyes by different parents. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: