Temple and Dobrovic

[2009] FamCA 764

FAMILY COURT OF AUSTRALIA

TEMPLE & DOBROVIC [2009] FamCA 764

FAMILY LAW – CHILDREN – with whom a child should spend time – oral application at conclusion of trial for increase in time spent with child pending judgment– where father has not undertaken an anger management course as ordered - where father’s time with child has been supervised – where allegations of sexual abuse and violence by the father are an issue at trial – whether father can have unsupervised time before judgment is handed down – supervision to continue until completion of anger management course

Family Law Act 1975 (Cth)

APPLICANT: Ms Temple

RESPONDENT: Mr Dobrovic

INDEPENDENT CHILDREN’S LAWYER: Graeme Hemsley

FILE NUMBER: ADF 1736 of 2006

DATE DELIVERED: 27 March 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 27 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr K Tredrea

SOLICITOR FOR THE APPLICANT: Legal Services Commission of SA

COUNSEL FOR THE RESPONDENT: Ms M Dickson

SOLICITOR FOR THE RESPONDENT: Mellor Olsson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr G Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Graeme Hemsley

Orders

1. That the father forthwith undertake and complete the “What to do about Anger” course conducted by Relationships Australia.

2. That from Monday 30 March 2009 paragraph 4 of the order made on 30 June 2008 be discharged.

3. That forthwith the husband’s parents, the paternal grandfather and the paternal grandmother, file and serve affidavits confirming their availability to supervise the time to be spent by the child C born … September 2003 with the father pursuant to this order until the successful completion by the father of the said course and that they have each read and understood the contents of the pamphlet as to supervision and the responsibility thereof published by the Legal Services Commission of South Australia.

4. That until further order the father be at liberty to attend school events at the school attended by the said child to which parents are normally invited including school plays, parent teacher interviews, sports days and classroom reading.

5. That the said child spend time with the father as follows:

   (a)from 10:00am to 1:00pm on Sunday 12 April 2009 and Sunday 26 April 2009;

   (b)from 10:00am to 2:00pm on Sunday 10 May 2009 and Sunday 24 May 2009;

   (c)from 10:00am to 3:00pm on Sunday 14 June 2009 and Sunday 28 June 2009;

   (d)from 10:00am to 4:00pm on Sunday 5 July 2009, Sunday 12 July 2009, Sunday 19 July 2009, Sunday 2 August 2009, Sunday 16 August 2009, Sunday 30 August 2009, Sunday 13 September 2009 and Sunday 27 September 2009;

   (e)from 10:00am to 4:00pm on Father’s Day in 2009;

   (f)from the conclusion of school on 3 September 2009 until 5:30pm

   UPON the following conditions:

   (i)that all such periods of time until satisfactory completion by the father of the said course be supervised by the father’s parents, the paternal grandfather and the paternal grandmother;

   (ii)that the handovers for the purpose of time spent take place at the B Children’s Contact Service SAVE AND EXCEPT on 3 September 2009 when the father do collect the said child at the commencement from the said child’s school and return the said child at the conclusion of time spent to the N Police Station;

   (iii)that the times of commencement and conclusion of all such periods of time spent be subject to the availability of the B Children’s Contact Service at those times and if not at the closest times that are available.

6. That the parties do everything necessary to attend the parenting orders program ‘Kids Are First’ run by Anglicare and for that purpose the parties are to contact the program at Anglicare within 7 days.

7. That the Registry Manager provide a copy of this order to the program provider.

8. That the child C born … September 2003 commence counselling with a suitably qualified psychologist nominated by the Independent Children’s Lawyer and with such counselling to commence at a time nominated by the Independent Children’s Lawyer, and with the purpose of such counselling to be to provide support to the said child during the period prior to delivery of judgment in this matter and to assist the said child to cope with the changes that are to occur during that period of time in relation to the time that he is to spend with his father PROVIDED THAT neither party is to contact the said counsellor SAVE AND EXCEPT in response to a request from that counsellor or for the purpose of arranging an appointment with the counsellor or otherwise through the Independent Children’s Lawyer.

9. That the cost of the said counselling be borne equally by the parties.

10. That both parties be restrained and an injunction is granted restraining each of them from denigrating the other of them or any member of the other’s family to or in the presence of the said child and from permitting any other person to denigrate that other party or any member of that party’s family to or in the presence of the child.

11. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 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 the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1736 of 2006

MS TEMPLE

Applicant

And

MR DOBROVIC

Respondent

EX TEMPORE REASONS

1. This is a matter which commenced as a trial last Monday week.  The trial concluded yesterday afternoon and at that time the father made an oral application for a variation of the current orders in relation to the time that the child the subject of these proceedings, a son C, spends with him.

2. I have indicated to the parties, and their counsel obviously, that given my current commitments and given the length of this trial, the extent of the evidence that has been presented and the issues that have been raised, it would be unlikely if I was in a position to deliver judgment inside six months.  I always live in hope in any matter that I can do that quicker than I anticipate, but I am trying to be realistic in that regard.  It may be that it is even longer than that.  That alone has highlighted the need to address the ongoing arrangements in relation to the child and spending time with his father.

3. The orders sought by the father are that, in effect, the time to be spent this Sunday under the current order will take place, but thereafter the requirement of supervision should be lifted.  The father seeks that the child spend time with him each Sunday in the month of April from 10:15am until 1:15pm - as I say, on an unsupervised basis - but with handover at the Children's Contact Service currently being utilised for the purpose of the supervised time.

4. A different arrangement is sought for the first weekend in May, namely, that the child spend time with his father from the end of school on 1 May until 6:30pm that same evening, but then for the balance of the weekends throughout May, the child spend time with the father on each Sunday from 11:00am to 4:00pm.

5. Then in June 2009 that time increase again to 10:00am to 5:00pm each Sunday, and in July 2009 it further increase such that on each weekend in July, the child spend time with his father from 10:00am to 5:00pm on the Saturday and the Sunday.

6. In August it is proposed that overnight time be introduced, namely, from 10:00am on the Sunday of each weekend until the commencement of school on the Monday, with the handover at the Children's Contact Service on the Sunday but with the father delivering the child to his school on the Monday morning.  I did not make a note of it, but I understand that the order sought is that that continue throughout September.  There are specific orders sought for Father's Day, which obviously will occur in September, but I do not propose to look any further than September at this stage.

7. The father also seeks an order permitting him to attend at the child's school and specifically to attend any parent-teacher interviews, and indeed any functions to which parents are invited, but also to have the ability to attend school during the school week to, for example, read to the class as is often the case these days.  That part of this application is not opposed.  The mother is comfortable to allow that to occur, in the knowledge - and this is her case - that that would still occur in a supervised situation.

8. Separate to that, the father through his counsel has indicated that he is quite prepared to commence an anger management course as soon as one is available.  I will come back to that in a moment.  In addition, it is proposed that the parties commence attending the Kids Are First program.  I will come back to that as well, but I mention, I do not understand that the mother has any opposition to that.  Mr Tredrea has confirmed that is the case.

9. However, the mother does oppose the other orders sought by the father.  She seeks that the current order continue pending delivery of my judgment.

10. In the final orders application that the mother has made to this Court, she in effect required two preconditions before moving to unsupervised time.  Firstly that the father undertake and complete an anger management course.  A particular course was identified, which is a 26‑week course, but again as I understand both her evidence and her counsel's submission, it could be any other appropriate course.  Again I will come back to that, because I think we have identified an alternative course.  In any event that was the first precondition.  The second precondition was that before moving to unsupervised time, the child be assessed by an appropriate expert as to whether it would be appropriate to move to unsupervised time and, more particularly, whether the child was ready for such a move and whether he would be able to cope with such a move.  Of course I cannot be definitive about the timing of all this because it is subject to when I deliver my judgment, but in general terms everyone, including me, is working on a six month time frame at this stage.

11. The Independent Children's Lawyer's position in relation to this application is effectively to support it.  However, he is concerned about the increases in time to be spent over the period that has been identified.  I do not recall him putting an alternative proposal but Mr Hemsley has raised concerns about particularly an increase to two days over a weekend, which on the father's proposal would come in in July.  As I understand it he is concerned about it being every weekend.

12. There has been a good deal of discussion between bench and bar, and I have raised a number of issues with counsel.  As a result this matter has taken longer than I anticipated, and I am sure counsel anticipated, but it is an important issue and that time has been well spent in my view because it has now been ascertained that there is an alternative anger management course which prima facie would appear to be suitable, and it is a course run through the auspices of Relationships Australia.  It is an eight week, 20 hour course.

13. I am told that the latest course commenced last Wednesday, and I assume that is the first night and the next night is this Wednesday.  However, the next course does not commence until 12 May.  Mr Hemsley has indicated that he might be persuasive enough with Relationships Australia to have the father join the course which has started, although I am told that it is full. 

14. Frankly, it would be preferable if the father could joint the latest course because this is an issue which is certainly on my mind and obviously is on the parties' minds and needs to be attended to.  The father has had the opportunity to attend anger management courses and indeed he has been ordered to attend anger management courses, but he has not done so.

15. He was assessed as not suitable to attend a particular course which he was directed to as a result of his conviction for assault in about June 2008.  He has given evidence about his involvement with that course and how he attended on three separate occasions, but in the end result he was still assessed as not suitable.  Thus the bottom line is the father still has not undertaken an anger management course despite, as I say, orders being made that he do so.

16. I do not mind saying that I am particularly concerned about that, and I have had that concern throughout this hearing.  In my view there is sufficient evidence that has been given during the trial which would require the father to attend an anger management course.  I am pleased that he has now, through his counsel, said that he will do that and he is quite prepared to attend this course of which I have just made mention, but, as I say, the sooner the better from everybody's point of view, including the child’s, he being the primary focus of these proceedings.

17. It is a difficult matter because, of course, I have not formally reserved my judgment, but I will be doing so shortly.  I need to hear Mr Hemsley in relation to one issue he wants to raise.  Although I propose to reserve, I have been up‑front with the parties in letting them know my preliminary view about some of the important issues in this case.

18. I have said on now two occasions, and I confirm, that my preliminary view is that the evidence does not permit me to make a finding that C has been sexually abused by his father, nor, for that matter, a finding that T, who is not a child the subject of these proceedings, but is a child of the mother's has been sexually abused by the father.  Indeed, after having heard all the evidence and the submissions, it is also my view that the evidence does not allow me to make a finding that there is an unacceptable risk of sexual abuse to C from his father.  Thus, I put those issues aside for the purpose of this application.

19. I have expressed some concern about the issue of family violence and what I might find about that, and what impact that might then have in terms of the final orders that I make.  However, I have not yet formed any concluded views, and one of the issues that I need to make a decision about is whether the evidence of violence is evidence of a pattern of violence or whether the incidents of violence can be assessed as being one‑off occasions which can be explained by the circumstances surrounding each occasion.

20. It would seem obvious to me that that is a vital decision I have to make in this case, because my concern is always for the safety and welfare of the child and I need to avoid and prevent a situation arising which might expose the child to any family violence.  Whether it is direct or indirect, it does not much matter.  Family violence is of concern and has to be of concern not only in this case but generally in the community.

21. However, because I have not formed any concluded view about that issue, that creates a difficulty in terms of what I am being asked to do now on an interim basis.  I have reserved my judgment not solely for that reason, but clearly there is a lot of evidence for me to dwell on and to consider and weigh, and that unfortunately takes time.  I consider that it would be unfair to the parties to launch into an ex tempore judgment.

22. Given that, I explored with counsel other options on an interim basis, and one matter I raised with counsel was the possibility of utilising other supervisors.  I take on board very much what Mr Hemsley has said to me about the question of the child being institutionalised in the sense of the only time he ever gets to spend time with his father is in a particular place at a particular time, with not necessarily the same workers but obviously workers at the Children's Contact Centre.  He has been seeing his father now in that scenario for, what, 12 months, and the prospect of that continuing has to be weighed up. 

23. One way to break that cycle, if you like, is to look at other supervisors.  The only other supervisors that the father is able to promote are his parents.  The mother through her counsel has advised me that she has made some inquiries of other supervisors through Families SA and she has ascertained that there are supervisors available who are normally used in “in need of care” circumstances.  In other words, in relation to Youth Court proceedings.  She has ascertained that there are two such supervisors available for three hours each alternate Sunday.  As Mr Hemsley has said though, that comes at a cost and sometimes that can be a prohibitive cost, but that is an option which is available for me to consider if I were to move to other supervisors.

24. As I said during the course of submissions a primary consideration for me is the father undertaking this anger management course and what I should do whilst he is undertaking that management course.  In other words should I maintain the current order or change it. 

25. Given the state of this case, with my judgment being reserved, and the issues which I still have to look at and make a final decision about, I consider that during the time the father is undertaking that course - whether it is immediately or as from 12 May, and obviously if it is 12 May I need to incorporate the period between now and 12 May - supervision should continue, but the father's parents should be the supervisors.

26. The mother opposes that, but Mr Hemsley does not.  The mother in her affidavit material, has raised issues about the father's parents.  In relation to the paternal grandfather, she made an allegation of violence, but as has been pointed out to me, that was not pursued in evidence.  He was not cross‑examined about that when he gave his evidence.

27. The other issue though that the mother has pursued - and this was expanded on in submissions by Mr Tredrea - is what he described as the control the grandparents exercise over the father.  I challenged him about this suggesting that that would indicate close supervision of the father, but Mr Tredrea's response to that is that it is more a case of concern whether the grandparents would act and/or report anything that their son did or said which negatively impacted upon the child.

28. I am struggling to understand the link between this and the issue of control, but for my part I am not satisfied on the evidence that I have heard - and I have heard a lot of evidence over many days - that the grandparents would be unsuitable supervisors.

29. I have taken some time to reach that decision, because the other issue which has been raised fairly and squarely with me in submissions is to take into account the mother's concerns and feelings and particularly her anxiety about the child with his father, and that is a serious issue.  However, I have not formed a concluded view about whether that is genuine or not.

30. The father certainly challenges that.  His case is the mother has fabricated the allegations and drawn C and T into that, and that in itself is abuse.  However, I have not formed any concluded view about that either. 

31. In any event, although the mother has concerns about the grandparents, objectively I do not consider that there is any concern or should be any concern about the grandparents supervising their son prior to or whilst he is undertaking the anger management course.

32. The next question is whether supervision should continue beyond the completion of that course, whenever that might be.  Again there are difficulties with that.  The mother's case is that there should be two preconditions before unsupervised time commences.  One is the completion of an anger management course, and the second is for an expert to assess the child as to whether it is at that time appropriate to move to unsupervised time with the father.

33. In relation to that second issue, I have indicated a preliminary view that that is not something that at this stage I would be disposed to require.  My primary reason for that is the evidence before me from the Children's Contact Service as to how well the time the child spent with his father has gone, and also extending to the involvement of the paternal grandparents of recent times.  Of course I factor into that the view that I have put about the allegations of sexual abuse, and whether there is an unacceptable risk of abuse.

1. I consider that I am sufficiently able at this stage to make a decision about that, and my view is that the supervision should only continue until the completion of the anger management course.  Indeed, at the end of the day Mr Tredrea did not speak forcefully against that.  I am not suggesting his client is consenting to that arrangement, but I take from Mr Tredrea's submission on behalf of his client that the primary issue for her is being satisfied that the father is undertaking the anger management course, and that there would be no risk thereafter in the child spending time with his father from a family violence point of view.

2. However, whether I have satisfactorily recorded the mother's case or not, my position is that regardless of that I consider it would be appropriate to move to unsupervised time once the anger management course has been completed.  I note, and obviously also place great reliance on the fact that that is the Independent Children's Lawyer's submission as well.  Indeed, his primary submission to me is that on a final orders basis supervision can be lifted forthwith.

3. The next question for me is what times should be ordered.  This coming Sunday should remain in place, namely, supervised time at the Children's Contact Service.  Then for the month of April, the father will either still be undertaking his course or still waiting for his course to commence, and thus supervision should remain in place for the month of April.  It also seems to me that it would be appropriate to continue roughly the same timing that the child has been used to, but on alternate Sundays, not every Sunday.

4. Thus, I propose for the month of April that the child spend time with his father from 10:00am to 1:00pm - I assume we do not have to worry about the 1:15pm time frame if the time spent is away from the Children's Contact Service - on alternate Sundays supervised by the paternal grandparents.

5. For the month of May when again the father would either still be completing his anger management course or about to start it supervision would continue.  I propose to marginally increase the time to 10:00am to 2:00pm, but again on alternate Sundays.  I also propose to make a specific order for 1 May, namely from the conclusion of school until 6:30pm.

6. Given that the father is going to be able to attend the school as of next week for the purposes that are agreed, in my view it should be open for the child to be collected from school on 1 May, but on a supervised basis.  By that I mean that either the grandparents can collect the child or the father together with the grandparents can collect the child.

7. Then I come to the month of June.  It is possible that if the father is able to get into this course that has started, June would be the first month after completion of the course, but otherwise if he was only able to start on 12 May.  If it is the case that he has completed the course then I would propose that the time continue unsupervised from 10:00am to 2:00pm on alternate Sundays, but supervised if he is still undertaking the course.

8. Then coming to July it may be that whichever course the father does, some time in that month would be the absolute outside when he would conclude that course.  In my view though there should be an increase in the time spent in July regardless.  I have not looked at this from a calendar point of view, but I want to work around the school holidays and provide that the father spend time with the child from 10:00am to 3:00pm on each Sunday over the course of the school holidays. 

9. For August and September, time spent will continue on alternate Sundays, but that should increase to 10:00am to 4:00pm, and that is as far ahead as I am prepared to go at this stage.

10. I also formally reserve my judgment.

I certify that the preceding 43 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 27 March 2009.

Associate