Trueman & Bedow
[2021] FedCFamC1F 356
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Trueman & Bedow [2021] FedCFamC1F 356
File number(s): BRC 14285 of 2020 Judgment of: BAUMANN J Date of judgment: 3 December 2021 Catchwords: FAMILY LAW – PARENTING – Interim arrangements - Where the child’s time with the mother is to take place in the presence of an individual known to the child Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 3 December 2021 Place: Townsville Counsel for the Applicant: Dr J Brasch Solicitor for the Applicant: Swaab Attorneys Counsel for the Respondent: Ms D Pendergast Solicitor for the Respondent: Barry Nilsson Lawyers Solicitor for the Independent Children's Lawyer: NR Barbi Solicitor ORDERS
BRC 14285 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TRUEMAN
Applicant
AND: MS BEDOW
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
3 DECEMBER 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1. That Orders 3 to 12 of the Orders dated 21 December 2020 be discharged.
Facetime and time
2. That the child, X born in 2010 (“the child”) shall communicate by Facetime, telephone or electronic communication at all reasonable times when she is in the care of the other parent and when she chooses to initiate such communication.
3. That the child spend communicate with the mother each Tuesday between 5.00pm and 6.00pm, with such call to be initiated by the mother to the child’s mobile device, and on the basis that:
a. the father will ensure the child’s mobile device is in a suitable reception area and charged; and
b. such communication is in private and unrecorded.
4. That the child spend time with the mother at all times agreed between the parents, but failing agreement:
a. on Saturday, 11 and 18 December 2021 from 11.00am to 3.00pm; and
b. thereafter, commencing 1 January 2022, on alternate Saturdays from 10.00am until 4.00pm.
5. That for the time referred to at Order 4 hereof, the mother will nominate to the father and the child on the Thursday immediately preceding time, which of the following family members, friend or friends will be attending with her at time (and if necessary whether time needs to take place on the Sunday in that week rather than the Saturday) with such person to be known to the child:
a. Ms B;
b. Ms C;
c. Ms D;
d. Ms E;
e. Ms F;
f. Mr G; and/or
g. Ms H.
6. That for the purposes of changeovers pursuant to these Orders, and unless otherwise agreed in writing, shall occur at M Store at L Town, New South Wales.
Exchange of information
7. That each parent shall keep the other parent informed as soon as is practicable as to any significant medical or health related issue concerning the child in writing unless in an emergency at which time telephone voice calls are permitted.
8. That the mother and the father keep each other informed as to any changes in their residential and email address and contact telephone numbers, and advise the other in writing within forty eight (48) hours of any such change.
Attendance upon treating health practitioners
9. That the mother continue to attend upon her treating mental health practitioners, including but not limited to her current treating psychologist and that she shall follow all directions provided to her by those practitioners.
Drug and alcohol testing
10. That within forty eight (48) hours of a request from the Independent Children’s Lawyer, each party (at the party’s cost) is required to submit to:
a. urinalysis chain of custody test for the detection of illegal drugs; and/or
b. supervised blood test for Carbohydrate-Deficient Transferrin (“CDT”) testing for the detection of heavy alcohol use,
on the basis that the Independent Children’s Lawyer may request one (1) of each such test of the parents randomly but not more than once every six (6) weeks.
11. That the tests referred to in Order 10 hereof shall be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs misuse.
12. That the parties are to provide the pathologists engaged for the tests referred to at Order 10 hereof with photographic identification, to be recorded before each test, and authority to provide the results of the test to the Independent Children’s Lawyer.
Undertakings
13. That the father undertakes until further Order or discharged by this Court:
a. not to discuss these proceedings in the presence or hearing range of the child;
b. not to expose the child to any aspect of these proceedings;
c. to take all reasonable steps to remove the child from any environment where these proceedings are being discussed;
d. to stop a third person from discussing these proceedings in the presence or hearing range of the child;
e. not to denigrate or speak ill of the mother, any partner the mother may have or any other person associated with these proceedings nor to expose the child to same and, in the event that same does occur, to immediately remove the child from such circumstances; and
f. not to allow any other person to speak ill of the mother, or other person connected with these proceedings, in the presence or hearing range of the child and, in the event that same does occur, to immediately remove the child from such circumstances.
14. That the mother undertakes until further Order or discharged by this Court:
a. not to discuss these proceedings in the presence or hearing range of the child;
b. not to expose the child to any aspect of these proceedings; t
c. to take all reasonable steps to remove the child from any environment where these proceedings are being discussed;
d. to stop a third person from discussing these proceedings in the presence or hearing range of the child;
e. not to denigrate or speak ill of the father, any partner the father may have or any other person associated with these proceedings nor to expose the child to same and, in the event that same does occur, to immediately remove the child from such circumstances;
f. not to allow any other person to speak ill of the father or other person connected with these proceedings, in the presence or hearing range of the child and, in the event that same does occur, to immediately remove the child from such circumstances; and,
g. not to do any act of thing to prevent the supervisor from acting on the child’s expressed wish to terminate the time she spends with the mother pursuant to Order 4(a) hereof.
Provision of reports and Orders
15. That pursuant to s 121 of the Family Law Act 1975 (Cth), the Independent Children’s Lawyer be at liberty to provide a copy of the affidavit of Dr J, Psychiatrist filed 12 October 2021, including the annexures thereto, and a copy of these Orders, to the following:
a. The child’s general practitioner, counsellor and psychiatrist;
b. the father’s counsellor(s) or psychologist;
c. the mother’s counsellor(s) or psychologist,
and for this purpose, the parents will confirm the identity of such persons (to the Independent Children’s Lawyer) within forty eight (48) hours of the date of these Orders.
16. That in the event that there are further or other treatment providers for the child, as agreed between the parents, the Independent Children’s Lawyer be requested to provide such further or other treatment provider with a copy of the affidavit of Dr J filed 12 October 2021 and a copy of these Orders.
Parenting Orders Program
17. That in the event that the parents have not done so, within fourteen (14) days of the date of these Orders, the mother and/or the father take all reasonable steps and make all reasonable enquiries to enrol to undertake the Positive Parenting Program (“the Program”) and upon completion of the Program, provide to the other parent a copy of the certificate of completion.
Other
18. That by no later than 4.00pm on 3 March 2022, each party file and serve a minute of their final orders sought.
19. That these proceedings be adjourned for Case Management Hearing at 9.30am (Queensland time) on 10 March 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
20. That the Independent Children’s Lawyer be at liberty to apply.
IT IS NOTED:
A. That pursuant to s.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 document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Trueman & Bedow has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BAUMANN J:
The interim proceedings today arise in what could only be described as very unfortunate and tragic circumstances. The parents of X, who will be twelve in March next year, separated as long ago as July 2013. Final orders were made by consent in 2015 and guided, it seems, the significant involvement both parents had in the lives of X and her older sister M. I say nothing more than to say that the tragic suicide of M in September 2020, coupled with other factors which are clear from the evidence, including difficulties the mother has experienced with significant surgery, have all combined to require the Court’s intervention once again. That intervention commenced with an Application being filed by the father after the passing of M in October 2020, and with the assistance of the Court and a Family Consultant’s recommendations provided in November 2020, approximately 12 months ago on 21 December 2020, a Senior Registrar made orders that shaped the further time the mother and father were to spend with X.
Although the orders made by the Senior Registrar provided for X to live with the father and for the mother to have supervised time, the supervised time was very frequent. At paragraph 3 of those orders, it provided the time would be each Saturday from 9.00am to 4.00pm, and each Wednesday from 4.00pm to 7.30pm. It is not in dispute that from X’s perspective, the mother did not exercise the time available under the orders for nearly six months. The reasons why that occurred are explained by the mother’s evidence about the difficulties she was experiencing both arising from her surgery, the understandable grief of the loss of M and the consequences of the medical and mental health treatment that she was required to undertake. It was a particularly dark period for everyone in this family after M’s death.
However for X, there was clearly, from the evidence of Dr J yet to be tested, a period where the father was the exclusive carer of X. Having said that, it is obvious from what she told Dr J in the interviews on 31 August 2021, that this child loves her mother, is forgiving of her mother for not maintaining time with her and that she wants to have a relationship with her. No one doubts in this case that X will benefit from having a relationship with her mother. However, that relationship can only occur if the mother is able, as she says now she is able to do, to commit to a routine, a regularity of time, so the child is not further disappointed by the mother’s failure to attend for whatever understandable, adult reasons the mother identifies in her affidavit.
The mother, in her affidavit relied upon in these proceedings today, at paragraph 25 sets out the time that the mother had spent with X with the father’s agreement since 6 July 2021 and it being clear that prior to that date, virtually no time took place. Leaving aside the visits that occurred when X was admitted at the K Hospital, it seems, for mental health reasons which are on their face quite troubling and not withstanding that the child continues to have support in relation to those feelings, the mother’s evidence is that she has spent time with the child on 5 August 2021, 4 November 2021, 6 November 2021 and on 27 November 2021.
The evidence that the mother gives makes it clear that the father was, as he says, supportive of her spending time with X on those occasions. Earlier today I have identified the major issues which need to be determined on an interim basis, noting that it seems that the mother feels confident she is now in a position to be a consistent participant in the life of X and wishes to do so. It is not in dispute now that before the matter returns to my list for a further Case Management Hearing on 10 March 2022, that the time X spends with her mother should be in the presence of people who will provide support to the mother and to X.
X has reflected positively on a number of the mother’s friends and I did not discern from what I have heard today, that the list of persons who are identified as possibly being available to be present with the mother when she is spending time with X is in dispute. Again, I see that as a positive insight from the father. The primary dispute arises as to how we should structure the physical time between now and 10 March 2022. I bear in mind that I do not need to make an order in relation to X’s birthday in 2022, as we will be back in Court before then and my anticipation is that the parties will be able to make an arrangement in relation to her birthday.
Essentially, the competing proposals in this new regime identified in the material is that the father and Independent Children’s Lawyer (“ICL”) say that time should commence and be maintained on a fortnightly basis, generally on a Saturday between the hours of 10.00am to 4.00pm and that this should continue in that form fortnightly until the matter returns before the Court, but in a way where it is acknowledged that there would be no time on a weekend that involves Christmas Day because of arrangements already made between the father and the child to spend Christmas Day in a particular way. The mother has now identified that her preferred approach will be for there to be six weekly visits of a shorter duration of four hours and then the time will increase to eight hours, from 10.00am to 6.00pm.
I should mention that there is no disagreement that the illicit substance testing which was ordered by the Senior Registrar should continue, although that will now be at the initiation of the ICL. The ICL properly makes the point that there is little science in determining the frequency of time, and in her support of the father’s proposal, this should not necessarily be seen as an opposition to the mother’s proposal. In my view, what is more important than frequency is consistency. The last twelve months have been highly inconsistent. The child needs to feel that the mother will commit to spending time with her. Although the father is prepared, with the supervisory conditions that everyone agrees to, to immediately start at eight hours, the mother prefers a shorter period but with frequency.
I have heard and considered the submissions of Counsel and have taken into account the observations made by Dr J and his recommendation for alternate weekends. Ms Pendergast for the mother, fairly points out, it is hard to see the underpinning opinions that support that recommendation by Dr J, as opposed to an alternate recommendation. I propose to order that commencing after school finishes – and I am told that is now 9 December 2021, the Saturday commencing 11 December 2021, that is, Saturday the 11th and Saturday the 18th, the child will spend time with the mother from 11.00am to 3.00pm. Understanding that the child will then be with the father on the Christmas weekend commencing 1 January 2022, the child will spend time with the mother from 10.00am to 4.00pm each alternate Saturday until the matter returns to my list.
In respect of changeovers, the father is unaware and the mother is not at this stage able to identify to the Court a permanent, albeit probably rental accommodation in which she will be living. That may well have clarified itself by the time the matter returns to my list on 10 March 2022. So as to avoid further possible conflict between the parties as to handovers, I will order that unless otherwise agreed in writing between the parties, changeovers occur at FoodWorks at L Town.
The other issue which requires determination is the time the child will communicate with the mother by FaceTime. In that regard, the current order of the Senior Registrar at Order 7 is in these terms:
7.The mother and the father have Facetime or telephone communication with X at all reasonable times that she is in the other parents care and that, in the absence of agreement, X have Facetime or telephone communication with the mother not less than each Tuesday between 5.00pm and 6.00pm with the father to be at liberty to be in X’s presence during such communications.
I take into account the competing positions of the parties now, the father says, effectively, to not prescribe telephone time, whereas the mother seeks that I prescribe two telephone calls a week. I propose to make the following order which is based on the principle that for a child approaching her 12th birthday, it is less about a child’s life being interposed by the need of a parent to speak with them, but rather there needs to be a degree of confidence that the child will have the ability to initiate a call if the child feels the need to do so. With the consistent physical time between the child and the mother occurring under my orders, the need for telephone time, in my view, for a child of this age reduces.
Accordingly, the order I will make now will be to discharge the order made at Order 7 on 21 December 2020, and the following order will be made in these terms:
(1)The child shall communicate by FaceTime or telephone communication at all reasonable times when she is in the care of the other parent and when she chooses to initiate such communication; and
(2)That the child shall communicate with the mother each Tuesday between 5.00pm and 6.00pm, with such call to be initiated by the mother to the child’s mobile device, and on the basis that:
(a)the father shall ensure the child’s mobile device is in a suitable reception area and charged; and
(b)that such communication is in private and unrecorded.
I note that the earlier order of Senior Registrar Rice provided for the communications to be with the father having the liberty to be in the presence of the child during such communications. In view of the age of the child, the comments she has made to Dr J, the desire she has to re-engage with her mother and the physical, although supervised time that is occurring, I have a trust that the child and the mother may communicate without the father being present. I say this because in my view on the evidence, and in view of the history, if the mother was, as the father at times fears, to make comments which were inappropriate, on the evidence although untested, the child, because of the strong primary relationship with the father will be likely to share it with him and I will hear about it.
We need to start allowing this child to have some of the freedoms which increase with age and maturity, she has been able to grow up very quickly in this case and the trust that she is entitled to feel that each parent extends to her. During the course of the discussions, I indicated why I was not prepared to make the orders sought by the mother at paragraphs 19 and 20 of the proposed orders. The transcript reflects those reasons and I say nothing further. Now, I think I have dealt with all the issues in dispute. I have indicated that I would want the parties to provide a minute of Final Order to be filed and served, so we know where the goal posts are. I will give the ICL liberty to relist.
I have no difficulties in incorporating the agreed orders from the orders of Senior Registrar Rice into this order so that we have got one document that is neat and tidy. I do not want the parties to start gearing up for an interim hearing on 10 March 2022 if there is not a common view about how we progress further or what evidence we need to progress further. Then I will be looking at the matter to get to trial, and when I have given a trial date, that will depend on whether I need to actually deal with any other interim matters between now and the trial. However, I should indicate that my intention and hope would be, if the evidence so permits, to allow X’s time with her mother to move to unsupervised time, including overnight time, so that she can, as a child who will then be on the cusp of her twelfth birthday, reconnect with her mother in a more positive and meaningful way than has been possible for a range of reasons over the last 12 months.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 3 December 2021
0
0
0