Theophane and Hunt (No 2)

[2011] FamCA 778

FAMILY COURT OF AUSTRALIA

THEOPHANE & HUNT (NO. 2) [2011] FamCA 778

FAMILY LAW – CHILDREN – Interim Orders – child to spend supervised time with mother.

Family Law Act 1975 (Cth)

B and B (1993) FLC 92-357

APPLICANT: Mr Theophane

RESPONDENT: Ms Hunt

INDEPENDENT CHILDREN’S LAWYER: Susan Gray

FILE NUMBER: CSC 1089 of 2007

DATE DELIVERED: 26 September 2011

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 26 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Reaston

SOLICITOR FOR THE RESPONDENT: O’Reily Stevens Bovey

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Mrs Gray

SOLICITOR FOR THE RESPONDENT: Susan Gray

Orders

UNTIL FURTHER ORDER

1. All previous parenting orders in relation to the child X born September 2006 (“the child”) remain suspended.

   UNTIL FURTHER ORDER

2. The child live with the father.

3. The child spend time with the mother supervised, as follows:-

   (a)    from 11.15am to 12.45pm Tuesday 27 September 2011; and

   (b)    from 1.10pm to 1.50pm Friday 30 September 2011

   at the office of Mr N with the father to deliver and collect the child to and from Mr N at 11.00am and 1.00pm respectively on Tuesday and 1.00pm and 2.00pm Friday and the mother not to arrive at Mr N’s office until the commencement and conclusion times as specified;

   (c)    each weekend as follows:-

   (i)from 9.00am until 5.00pm on Saturday 1 October 2011, 15 October 2011, 29 October 2011 and 12 November 2011; and

   (ii)from 9.00am until 5.00pm on Sunday 9 October 2011, 23 October 2011 and 13 November 2011, such time be supervised by at least two of either:-

   (a)the maternal grandmother;

   (b)the maternal grandfather;

   (c)the wife’s husband, Mr E; or

   (d)Ms J

   AND IT IS DIRECTED that the two not to be a combination of the maternal grandparents together as the sole two supervisors.

4. The collection and delivery point being the O Day Care Centre (or such other place as is agreed in writing between the parties and the Independent Children’s Lawyer) with the father to deliver the child at the commencement of time, and:-

   (a)    collect at the end of the time, the collection and return of the child to be by at least two of the nominated supervisors;

   (b)    such supervisors to collect the child and are not to arrive until fifteen minutes after the start time and the child to be returned at least fifteen minutes before the end time;

   (c)    the father not to deliver or collect the child at the precise time and not after in terms of drop off early or in terms of collection;

   (d)    the father shall as soon as the child is delivered move away from that area; and

   (e)    the supervisors who deliver or collect the child, once that occurs, move away from the area as soon as practicable.

5. Pursuant to s.65DA(2) and s.62B, 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.

6. Leave be given to the parties to apply.

   IT IS CERTIFIED

7. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 1089 of 2007

Mr Theophane

Applicant

And

Ms Hunt

Respondent

REASONS FOR JUDGMENT

1. This is, to say the least, a most difficult interim matter.  It is difficult for a number of reasons.  Firstly, the age of a child who is not able to self-protect, and secondly, the history of this matter.  These proceedings relate to the interim care of X (“the child”), who was born in September 2006 and has just celebrated her fifth birthday.  Orders were made by me in November 2009 providing that the child live primarily with her mother and spend time with her father.  I had hoped at the time of giving those reasons that this would be the end of the matter.  Since that time there has been a continuation of proceedings at an unending and unenviable level.

2. The matter came before me and was then transferred to Watts J earlier this year in relation to some further applications which were dismissed and subject to some orders of the Court.  There was also an application for a contravention of orders which was heard by Coker FM in August.  The real significant part of why the matter came back to me arose after the hearing before Coker FM and in early September of this year, because the father asserts that the mother drove about a 100 kilometres to his home with a knife, wearing a wig and gloves and endeavoured to kill him.  He suffered injuries as a consequence of that.  It is an agreed fact that as a consequence of those events, the mother was charged with and remains charged with the crime of attempted murder.

3. The father says this came in many ways as a shock to him.  The mother’s version of those events is that she had been the subject of physical, sexual, emotional and financial abuse for many years and that abuse had transmogrified into abuse through the legal system since separation in 2006 or 2007.  She says, or asserts with her witnesses, that the father is narcissistic, abusive and violent and that at about the time in question or shortly before that time she says he threatened not only her but also their daughter X and the mother’s son, from her current relationship, aged some 19 months. 

4. When the matter came before me on 5 September 2011, the mother was incarcerated and there were concerns about the welfare of the child.  I made an order placing the child in the father’s care.  What is not an issue is that the following day, the mother was released on bail, a temporary protection order was made, a Family Report was ordered and the matter is progressing from there.  It is also clear that the mother has complained that she was sexually assaulted by the father and she says, and I do not know whether it will be accurate or not, that the police are contemplating charging the father in respect of those sexual assaults.

5. In relation to the proceedings against the mother in the criminal jurisdiction, it is likely that they will take a year to a year and half or even longer to be finalised.  If it is a matter where the charges would normally heard in the Supreme Court, I take it, and unless there was a No Bill application that will take time to run through that process.  If the father is charged, that in itself will take some time or would need to be in a different court, no doubt, with a different judge.  So it is unlikely that the finalisation of these proceedings will take place for some time. 

6. Whatever the interim orders are they are therefore going to be a long-term arrangement.  As such, at the commencement of this process, I said to the parties I would be dealing with the matter again on an interim basis on 15 November 2011.  By that time, further information could be at hand, including a Family Report and perhaps some more evidence before me and I would be better equipped to make a more sustainable long-term parenting order on an interim basis.  Accordingly, the orders I am looking at making today will last about six or eight weeks.  It is not in issue that the child had been primarily in care of the mother since her birth.  It is not in issue and that the child was living with the mother, her stepfather and her brother.

7. Even on the mother’s case, it is anticipated that the child would spend time with the father.  The mother has filed a significant quantity of affidavit material from friends and relatives, and I do not intend to go through that in detail at this stage except to say, that affidavit evidence is universal in its support of the mother and her capacity as a very fine, warm and loving mother.  She has also filed affidavits by a former friend or acquaintance of the father, who is critical of him.  The mother asserts that the father had been violent to another girlfriend, although that person’s evidence is not before the Court.

8. There is some evidence from a police inspection of the home of the father that the child is managing quite well in that home.  There is some evidence from a psychiatrist, who is an adversarial psychiatrist not a single expert, who says that the mother does not present as a risk to the child and there is other medical evidence to that end.  The Independent Children’s Lawyer has made arrangement with Mr N to see the child in terms of the psychological issues which she would be suffering at the present time, bearing in mind the circumstances that currently exist.  He is available this week or tomorrow from 11.00 am to 1.00 pm and is available for an hour on Friday.  I intend to make use of that time for the child to see her mother at least tomorrow for two hours and at least on Friday for an hour. 

9. The question is where does the matter go from here?  Ms Reaston urges upon me that I should return to the status quo.  At this stage because of the nature and seriousness of the charges, I am not inclined to do so and I am supported in this view by the submissions of the Independent Children’s Lawyer.  But I am deeply troubled by this matter, as I said at the start.  I will again request that the Queensland Department of Child Safety intervene in these proceedings because if the mother is right about the father, it may not be safe for this child to be living in the father’s home.

10. If the mother is convicted of these offences and if the mother acted as the father asserts, the child may be at risk in the mother’s care in that she (the mother) acts out impulses in an awful and frightening way.  But my focus is, of course, on this child.  I had before me four volunteers as supervisors.  The mother’s present husband, who gave evidence in the witness box, gave strong evidence that he would be there at all times and made it very clear in that evidence that he would be.  I made him give an undertaking in the witness box so that the enormity of what he is saying and doing was apparent to him.  I adopted the same approach with the maternal grandparents and Ms J.

11. The father raises some issues about the maternal grandfather in that he suggested during the course of the submissions that he may well have been a party to the crime that may or may not have been inflicted upon the father.  He also suggests that the maternal grandmother and others may not be able to focus on the child for all of the time.  To deprive this child of the time I suspect she needs with her mother would not be in her best interests, yet I would not put this child in danger.  That was the very reason I made the order on 5 September 2011. 

12. The Independent Children’s Lawyer has set out a history which I will go through now.  The father was born in 1966 and is aged 45 years.  The mother was born in 1978 and is aged 32 years.  The parties met in October or November 2005 and commenced cohabitation in January or February 2006.  In January or February 2006, the mother alleges the father forced her to have sex against her will and in January 2006, the parties became engaged.  In April 2006, the father alleges the mother attempted suicide and I think I dealt with that in my Reasons, in one form or another.

13. The mother says that she was assaulted by the father in early September 2006 and in late September 2006, the child was born.  The mother alleges domestic violence, rape and then in August 2007, she relocated to Far North Queensland.  The mother asserts that she was abused by the father in September 2007 and raped and threatened by her [sic] in September 2007.  The parties separated that month.  A temporary domestic violence order was made on the application of the mother and the father’s domestic violence application was made and dismissed.

14. The father commenced seeing the child in December 2007.  The mother commenced proceedings and an affidavit was filed.  At a contested DVO proceeding in February 2008, the magistrate found the mother was a victim of domestic violence and continued harassment and an order was made.  In March 2008, the parties consented to interim orders that the child live with the mother and spend time with the father.  In May 2008, the mother commenced her relationship with her present husband Mr E.  In June 2008, the mother agreed to a gradual build-up of time and the parties were referred to Dr K for assessment.  A report was prepared by Ms P and interim orders were made by me in October 2008.

15. There were also issues about child support.  There was an application for contravention by the father which was dismissed by Coker FM in 2009.  In August 2009, the father sought sole parental responsibility and the child live primarily with him and the time with the mother be supervised.  In September 2009, some further directions were made and the matter was then listed for hearing before me in October 2009.  There was a three-day trial in October 2009 and orders were made.  In early 2010, the mother’s child Z was born.  In March 2011, the father filed a contravention application which I have dealt with earlier and then there was the other proceedings which were dealt with by Coker FM.  During the course of this, there were proceedings in the Supreme Court, which related to the de facto property proceedings.  That order remains unsatisfied. 

16. When the matter was before me I was satisfied that it was important this child have a relationship with both parents.  Once this matter is finally determined I suspect that there may be a real issue as to whether there is a benefit for the child having a meaningful relationship with one or other parent, bearing in mind the history of this matter and the level of conflict and what has gone on, but that is a matter of related time.  At the present time, it is clear, it seems to me, on an interim basis that there should be a continuing relationship.

17. However, there is a need to protect the child from physical or psychological harm.  Counsel for the mother says that the mother is not a risk to the child.  However, that in many ways ignores the events early September 2011 and the enormity of the events that occurred on that day.  I have had regard to the detailed submissions in that respect by both the mother and the Independent Children’s Lawyer on the short comments made by the father.  The child is only five and her views are of interest, but not certainly determinative and each party gives different views to that.  I have spoken about the nature of the relationship, that it was a close relationship with both the mother and father and particularly with the mother until September this year. 

18. I do not believe either parent is willing to facilitate and encourage a close and continuing relationship between the child and the other parent.  I make no formal finding in that regard but it is simply a reflection of what has happened to this child since separation in 2007 which can leave no other alternative open in real terms.  That may be soundly based by one or the other parent, but neither will do that.  I am satisfied, having regard to the history of this child, that she must be missing her mother, her stepfather, her brother and her broader family.  There will be practical difficulty for the reasons that I refer to, in particular the mother is on bail in respect of those serious charges. 

19. There are issues about both parents being able to provide for the full needs of this child, bearing in mind the history of this matter.  Whatever orders I make, this matter will need to come back to the Court.  It is significant that the father has not complied with his child support obligations, although that is a factor that should be discussed at other times and not now.  What I intend to do is leave parental responsibility with the father because of the allegations that are made. 

20. I intend to leave the child primarily with the father until at least 15 November 2011.  I intend that the mother spend time with the child and with Mr N from 11.00 am to 1.00 pm tomorrow and for one hour on Friday.  I also intend to make orders that the child spend time with the mother, that is supervised time, on a regular basis between now and 15 November 2011 on the weekends.  That will enable there to be supervision in place for the child. 

21. I am concerned and I note the comments of the Full Court[1] with regard to people, who are supervisors, particularly supervisors who are related to the parent.  In this case, I am conscious that getting time at the C Contact Centre would mean an order for no contact in the present circumstances.  What I propose to do is to have a requirement that at least two of the supervisors be present at all the times for that time.  That way it will limit or hopefully prevent any time that the child is unsupervised.  I will not allow the maternal grandparents to be the joint supervisors because, bearing in mind the criticisms of them made by the father, it would be an unsatisfactory arrangement in the circumstances of this case.  I was impressed particularly by Mr E and Ms J in terms of the evidence they gave in respect of their understanding of their obligations.  I intentionally, as I said, put them in the witness box so that I could see them and hear them and ask them some hard questions. 

    [1] B and B (1993) FLC 92-357.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 26 September 2011.

Associate:     

Date:              26 September 2011