Teague and Verrell (No.2)

[2018] FCCA 3849

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEAGUE & VERRELL (No.2) [2018] FCCA 3849

Catchwords:
FAMILY LAW – Interim parenting – whether mother’s time should be professionally supervised or supervised by a family member.

Applicant: MS TEAGUE

Respondent: MR VERRELL

File Number: MLC 527 of 2016

Judgment of: Judge Harland

Hearing date: 3 December 2018

Date of Last Submission: 3 December 2018

Delivered at: Melbourne

Delivered on: 3 December 2018

REPRESENTATION

The Applicant: In person

The Respondent: In person

Solicitors for the Independent Children’s Lawyer: Ms Ebejer of Ebejer & Associates

ORDERS

1. The parties do all acts and things to enrol with Suburb A Contact Centre (“contact centre”) within seven days.

2. The mother spend supervised time with [X] born … 2009 at the contact centre at times and dates as can be accommodated by that centre.

3. The mother’s application in a case be dismissed.

4. The matter remain listed for final hearing on 8 May 2019 (with an estimated hearing duration of two days).

IT IS NOTED that publication of this judgment under the pseudonym Teague & Verrell (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 527 of 2016

MS TEAGUE

Applicant

And

MR VERRELL

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. I am asked today to determine the mother’s application in a case filed on 11 October 2018 seeking supervised time with her daughter, [X]. She seeks that her time be supervised primarily by one of her adult children, Ms B, and when she’s not available, by her stepfather. The mother says in support of that proposal that her stepfather has previously supervised the time in 2016 and her daughter, Ms B, has filed an affidavit on 1 November 2018 where she annexes an undertaking to the Court with respect to supervision. Ms B says that she understands that her obligations as a supervisor would be to ensure that the mother does not discuss inappropriate topics with [X] and if she observes [X] looking uncomfortable in the mother’s presence to call the father. 

3. The mother seeks that she have time overnight on Thursdays so that she can have some contact with [X]’s school and also seeks time for a few hours on each Sunday and time on Christmas Day. The father opposes the mother’s application and says that the mother’s time should be supervised by a professional supervisor. He is concerned about Ms B’s ability to step in and control the mother if necessary and also has concerns about the stepfather and says that there were difficulties when a family member supervised the mother’s time previously. 

4. The father is particularly concerned about there being overnight time. The Independent Children’s Lawyer also opposes the mother’s application and says that the mother’s time should be supervised by a professional and that given the parties’ financial circumstances, realistically, this would mean supervision at a contact centre, the nearest contact centre being Suburb A. The Independent Children’s Lawyer has made inquiries of that contact centre and there is about a three-month delay. 

5. The Independent Children’s Lawyer has met with [X] last week and said that [X] has been receiving treatment for her eyes and presented very differently to her than she did on the last occasion. She expressed that [X] clearly loves both her parents and misses her mother and wants to see her. The case has a final hearing in May 2019 with a family report to be released at the end of March. In order to place this current application in context, I refer to my reasons for decision given on 5 July 2018 which outline the lengthy history of this case and the risk concerns. 

6. On that occasion, I suspended the mother’s time and issued a recovery order. The police were involved in recovering [X] to the father. The Independent Children’s Lawyer says that was distressing for [X]. The primary concern that the Independent Children’s Lawyer has is the risk of [X] being withheld by the mother again, given this has occurred on more than one occasion. There are real disputes between the parties as to whether [X] is at risk in her father’s care or her mother’s care. 

7. The mother’s case is that her concerns raised about risk in the father’s care have not been addressed whereas the father’s position is that the mother’s mental health is the risk factor. I have referred to those issues in my previous reasons and I will not go through them here. The mother, understandably, does not want to have her time supervised at a contact centre. 

8. She is concerned that that would give [X] the message that she is unsafe and it is apparent from the mother’s submissions today that she sees it as the father who is the one who is unsafe and referred to it being abhorrent that [X] remains in the father’s care. Nonetheless, when the matter was before me on 10 August, the mother would not agree to her time being supervised and she explains in her affidavits that this was because she was concerned that that would be an indication by her that it was necessary.

9. In the mother’s application she now seeks supervised time on the understanding that that is the only basis upon which she will be permitted to see [X] on an interim basis until the very serious issues are tried at the final hearing in May. I certainly accept that it is the mother’s position that supervision is not necessary; however, as is apparent from my reasons on 5 July, my view was that there certainly are risk issues and that means supervision is required until the competing allegations by both parents are tested. 

10. The mother, in her submissions today, also referred to her adult children having witnessed the father’s abuse and having also witnessed [X] not wanting to return to the father’s home. She raised this in the context of a submission that the father’s proposal which he had made previously for [X]’s other siblings to spend time with [X] by attending his home were unreasonable in those circumstances given their experience of him. 

11. What concerns me is the issue of whether or not, in all of the circumstances – and bearing in mind the reasons that I have previously given – that Ms B will be in a position to supervise the mother’s time, including in circumstances where it may be necessary for her to terminate that time. I accept that Ms B has prepared an affidavit and has prepared an undertaking indicating her understanding of the obligations of a supervisor; however, she and the mother live in the same home. She is a young adult, having been born on … 1999. 

12. I also have concerns, not with respect to her genuineness in terms of wanting to supervise time, nor in the mother’s genuineness, but in relation to the issue about whether or not that would place [X] at an unacceptable risk. In the circumstances, and having regard to the previous reasons, in my view, the mother’s time would need to be supervised by a professional, whether it be at a contact centre or through a private supervisor, though I certainly appreciate that it is highly unlikely that the parties would be able to afford private supervision. I am mindful that the mother has not seen [X] for some five months and I have no doubt at all that [X] is missing her mother and wants to see her. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 20 December 2018