TEEL & BRADY
[2020] FamCA 1110
•4 December 2020
FAMILY COURT OF AUSTRALIA
| TEEL & BRADY | [2020] FamCA 1110 |
| FAMILY LAW – CHILDREN – Application by father to spend supervised time with the children – Application opposed by the mother – Interim orders that father spend supervised time with the children at a Children’s Contact Service FAMILY LAW – CHILDREN – Orders by consent that single expert be appointed |
| Family Law Act 1975 (Cth) ss 60B and 60CC |
| J v C in [1969] 1 All E.R. 824 Donnell & Dovey [2010] Fam CAFC 16 Yamada & Cain [2013] FamCAFC 64 |
| APPLICANT: | Mr Teel |
| RESPONDENT: | Ms Brady |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Murray |
| FILE NUMBER: | HBC | 917 | of | 2020 |
| DATE DELIVERED: | 4 December 2020 |
| PLACE DELIVERED: | Launceston |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 4 December 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Pemberton |
| SOLICITOR FOR THE APPLICANT: | Clarke & Gee |
| COUNSEL FOR THE RESPONDENT: | Ms Burns |
| SOLICITOR FOR THE RESPONDENT: | Bishops |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Murray |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Murray & Associates |
Orders
The children Y born … 2015 and X born … 2016 (‘the children’) live with Ms Brady (‘the mother’).
The mother keep the Independent Children’s Lawyer and Mr Teel (‘the father’) appraised of any significant aspects of the children’s health in advance if that is reasonable achievable.
The children shall spend supervised time with the father at least once per fortnight at the B Contact Centre (‘the Contact Centre’).
Each party shall contact the Contact Centre within seven days and:-
a. arrange an appointment for assessment for suitability for supervised time;
b. attend the assessment;
c. comply with any appointments made by the Contact Centre for supervised time;
d. comply with all reasonable rules of the Contact Centre; and
e. comply with all reasonable requests and direction of the staff of the Contact Centre.
If after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in this order then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on the giving of fourteen days written notice to the other party and to the Court (liberty to relist the matter to apply twelve months from the date of this order).
The Contact Centre may recommend the parties or either of them to participate in a program or programs, in any event, either party may re-list the matter for mention on the giving of three days’ notice to the other party and to the Court (liberty to relist the matter to apply twelve months from the date of this order).
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the father is to spend time with the children as set out in this order or at times nominated by the Contact Centre.
In the event that the Contact Centre offers supervised times only at times which are less regular than specified in this order then times will be spent at the times which are offered by the Contact Centre.
The father shall not attend the Contact Centre or its vicinity before the time with the children is to start and shall promptly leave the Contact Centre and the vicinity when the time with the children is to end.
The periods of times to be spent provided in these orders may vary by reason of the closure of the Contact Centre’s services during holiday periods and in such event, time will be spent at times which the services can be provided by the Contact Centre.
The father shall meet the cost of the Contact Centre.
BY CONSENT the parties be restrained from discussing these proceedings in the presence or hearing of the children or allowing others to discuss these proceedings in the presence or hearing of the children except in the context of the single expert undertaking such report.
BY CONSENT both parties shall be restrained from abusing, demeaning or belittling the other parent or members of their family in the presence or hearing of the children or allowing others to do so.
BY CONSENT Orders be made in accordance with the minute of consent order signed by the parties and the Independent Children’s Lawyer, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
These proceedings be adjourned before a Registrar of the Family Court at 10.15am on Wednesday 10 March 2021 for trial directions.
Leave be given for the parties and the Independent Children’s Lawyer to have the matter restored on the giving of 7 days-notice to the other parties and the Court.
IT IS DIRECTED
A copy of the reasons for these orders be taken out and placed on the Court file.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Teel & Brady has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Exhibit “1”
Pursuant to Part 15.5.5 of the Family Law Rules Dr C be appointed as Single Expert (“the Single Expert”) to enquire into and to report as to the matters hereunder with respect to the two children Y born in 2014 and X born in 2016.
For the purposes of the Single Expert’s investigation and report she have access to all documents filed in the Family Court of Australia with respect to these proceedings and all subpoenaed material produced to the Court together with the Section 91B Report produced by Child Safety Services.
This Order be an authority for all health care professionals, the Education Department and experts or professionals associated with the children to respond to and provide information to and provide copy documents to the Single Expert in accordance with any requests reasonably made by her and without limiting the scope of this paragraph it to cover:
(a)The Department of Health & Human Services Child Safety Services;
(b)The Tasmanian Department of Education;
(c)D Services; and
(d)F Services.
The parties comply with any requests by the Single Expert through the Independent Children’s Lawyer to attend any interviews required by the Single Expert and to ensure the attendance of either or both children upon the Single Expert as she requests.
The Independent Children’s Lawyer have leave to provide to the Single Expert the Section 91B Report dated 22 September 2020 for the purposes of providing an appropriate brief to the Single Expert.
The Single Expert Report on such matters that are reasonably within her professional capacity as identified as issues relevant to the children in the Section 91B Report.
If the Single Expert considers it reasonably necessary to include in her report a psychological assessment of either or both parents either in assessing the probability or otherwise of the allegations and/or as to the recommencement of any time between the father and either or both children then the parents shall comply with the reasonable requests of the Single Expert.
Such Order be made as to the costs of the Single Expert Report as the Court deems fit.
The parties, the Independent Children’s Lawyer and the Single Expert have leave to have this matter mentioned in the event that any further Directions for the Single Expert Report are required.
| FAMILY COURT OF AUSTRALIA AT LAUNCESTON |
FILE NUMBER: HBC 917 of 2020
| Mr Teel |
Applicant
And
| Ms Brady |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings relating to Y, aged six, and X, aged four and a half. Their father, Mr Teel (‘the father’), commenced proceedings in this Court for parenting orders, and the mother, Ms Brady (‘the mother’), has filed a response to that application.
The issue I am to deal with today is whether the children should spend supervised time with the father at the B Contact Centre, as sought by the father, or whether the children should spend no time with the father pending the outcome of the investigations by a single expert, and presumably determination by a court on a final hearing.
BACKGROUND
In terms of background, the father was born in 1974 and is aged 46. He is a community worker. The mother was born in 1979 and is aged 41. She is presently focused on the care of the children.
According to the father, the parties commenced cohabitation in 2013 and separated in 2016. According to the mother, cohabitation commenced in January 2012 and concluded in January 2016. The mother lives with the children at her home which she shares with her adult son Mr G and another adult member of her family. The father lives at home with his parents: the children’s paternal grandmother and paternal grandfather.
THE EVIDENCE
Fortunately, each of the parties were represented by competent legal practitioners today, and, given that the matter was placed in the Magellan List, I had available a report from the Children and Youth Services which is Exhibit Y1, and I was taken to some particular events on 31 July 2020 and 11 August 2020, which is Exhibit Y2.
I also had before me the Initiating Application filed by the father, his affidavit of 22 November 2020, his Notice of Risk of Abuse filed 24 September 2020, and the Affidavits of his parents filed 24 September 2020.
I also had before me the mother’s Response to Final Orders, and the Affidavit of the mother of 15 October 2020.
THE LAW
The provisions of the Act that deal with children are set out in Part VII of the Family Law Act 1975 (Cth), in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) 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
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The House of Lords in J v C in [1969] 1 All E.R. at page 824 Lord MacDermott said when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration said the following:-[1]
3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases. The parental rights however, remain, qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbin, L.J. in re: O’Harra [1900] 2 I.R. at page 240
4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance. For all I know that may have been true in some cases containing dicta to that effect. But I think a growing experience has shown that it is not always so and that serious harm even in young children may, in occasion, be caused by such a change. I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion. But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.
[1] Page 824.
These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.
The Full Court, comprising of Murphy & McMillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’. Their Honours went on to reject that argument. The basis for that rejection was set out from paragraph 19 onwards.
The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest. Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per say. The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] Fam CAFC 16 and said:-
25. In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].
(Bold emphasis added).
26. Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:
It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …
and more broadly, at [75]:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …
The Full Court in Yamada & Cain (supra) went on to conclude:-
27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
I will endeavour to apply the principles of law to the facts.
In this case, each of the parents, from their affidavits has, not unusually I might add, painted the other parent in as dark a light as they possibly can. It is the nature of family law proceedings that parties are polarised. It is not in issue that the mother is the primary carer of the children and has been their primary carer since birth. The mother has had suspicions about the father over some years, and, with some disclosures made by the children in the middle of 2020, she reported the matter to child protection authorities and to the police. I have the documentation as to what happened in those reports, and I have the mother’s evidence as well.
The mother, at this date, seemingly believes that the children, or at least one of them, was abused, and has taken protective action in terms of terminating their time with the father and providing assistance for the children at F Services.
The father denies that he has acted inappropriately with the children, and says that this is a step taken by the mother. Of course, I am not in a position to make a finding of credit of either the mother or the father at this stage. I read carefully, and considered carefully, the recommendations and information to assist the Court contained in Exhibit Y1, including the referral to a paediatrician in relation to the children, and the other concerns raised by the Child Protection Authorities.
The father currently resides with his parents, and seemingly continues to do so. He clearly has their support, and the mother’s view of the paternal grandparents is that they are not likely to be protective of the children. That will be obviously a matter for the trial judge on the final hearing. The mother asserts that the father has exhibited anger and undertaken some forms of family violence. That is denied. At this stage, the police have taken no further action and intend to take no further action. At this stage, the Child Protection authorities do not wish to be further involved, although that may change.
The mother’s counsel asserts that the mother’s capacity to parent may be undermined or diminished by the children having supervised time with the father. There is no cogent evidence before the Court of that at this time, although that does not prevent such evidence being adduced either through the single expert or otherwise.
The Court, particularly the Family Court in Tasmania, is in an area of, or a time of change. I have been a judge of the Family Court for about 15 years, but I go on long leave this afternoon. That does not mean I will not give this matter, and have not given this matter, significant thought. There is unlikely to be a replacement for me until May, June or July next year at the earliest, and, in the meantime, judges are being flown in from interstate, where the resources are not as strong as they are in Tasmania, so it is unlikely that this case will be heard by a judge any time before July of next year, and it may well be longer.
The children have not spent time with their father since July of this year, which would mean if there was no time then the children would have no time with their father for at least a year, possibly longer, given the need to hear a case and deliver reasons. A year in the life of a six or a four year old is a considerable period of time.
Unsurprisingly, given the matters before the Court, an Independent Children’s Lawyer has been appointed, and his submissions were, on balance, that the children should see their father at the Children’s Contact Service. It is unlikely, even if I make such an order, that the children would see their father until some time in January, or it could stretch out to February.
I made a consent order at the commencement of the hearing today for the appointment of a single expert. It is important that the single expert have some understanding of the nature of the relationship between the children and the father so that he can provide the Court with cogent evidence. If the children spend time with the father at a children’s contact centre, they will be observed at all times. There will be notes taken as to their presentation, their interaction with the mother when she leaves and when she collects them, the interaction with the father when he arrives, and anything the father says.
These contact services, of which I have visited many, including the one at Launceston, are extraordinarily conscious of the need to be careful with children. I am satisfied that it is unlikely to the extreme that the children could be groomed or in any way harmed at a contact centre. It is my knowledge of how they operate that the father’s time with the children would cease if anything like that occurred, and there would be a report to both the solicitor for the mother and the father, and to the Independent Children’s Lawyer.
Given the significant weighing exercise that I have, and undertook, I intend to make an order that the children spend some supervised time with the father at the Contact Centre. It will be open for the mother, and for the father if need be, once the single expert report is released, to come back to the Court on an interim basis and seek to have those orders changed in one way or another. I raised with the parties, during the course of the hearing, whether I should put in place some protective orders for the children in relation to discussing the proceedings and abusing, demeaning or belittling the other party. I have made no formal findings in that regard, but it seems a good idea to have that as a protective mechanism for these children.
I will not be making an order for sole parental responsibility in favour of the mother because there is no utility for that. The father will have no time with the children other than at a contact centre, and under the provisions of the Act, the mother has several parental responsibility in any event, and can make decisions about doctors, and medical appointments and the like.
There is going to be no real issues of parental responsibility between now and the hearing, and that can be determined at a later time, except in relation to medical treatment, and no doubt the mother will keep the father and the Independent Children’s Lawyer informed as to any significant aspects regarding the children’s health.
I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 4 December 2020
Associate:
Date: 22 December 2020
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