Viney and Riley
[2016] FamCA 742
•30 August 2016
FAMILY COURT OF AUSTRALIA
| VINEY & RILEY | [2016] FamCA 742 |
FAMILY LAW – CHILDREN – Interim parenting orders —need to protect the child from harm — unresolved criminal charges against parent seeking immediate resumption of time — supervision time — time to be conditional on substantial attendance by a third person — desirability of a psychiatric assessment of both parents by an appropriately qualified single expert witness
| APPLICANT: | Mr Viney |
| RESPONDENT: | Ms Riley |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lonergan |
| FILE NUMBER: | MLC | 7497 | of | 2015 |
| DATE DELIVERED: | 30 August 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 12 August 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Renwick |
| SOLICITOR FOR THE APPLICANT: | Kenna Teasdale |
| COUNSEL FOR THE RESPONDENT: | In Person |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHIDREN”S LAWYER | Ms Sweet |
| SOLICITOR FOR THE INDEPENDENT CHIDREN”S LAWYER | Victoria Legal Aid |
Orders
(as pronounced on 1 September 2016)
IT IS ORDERED THAT:
1.The father have permission to withdraw his contravention application filed on 27 July 2016 and returnable on 6 October 2016.
2.Paragraphs 2 and 3 of the Orders made by the Senior Registrar on 14 December 2015 be and are hereby discharged.
3.That the child B born … 2013 (“the child”) spend time with the father on:-
a) Sunday from 10.00 am until 6.00 pm commencing 4 September 2016;
b) Thursday from 3.30 pm until 6.30 pm commencing on 8 September 2016;
c) Christmas Day from 2.00 pm until 6.00 pm; and
d) At other times agreed prior in writing and supported by the independent children’s lawyer.
4.That for the purpose of the time spent between the child and the father, such time to be supervised by either of:
a) Mr C; or
b) Ms D;
or such other person who is nominated and agreed to by all parties in writing, and in all instances no time shall occur until and unless the supervisor or other nominated person completes an undertaking to the Court to supervise the child’s time with the father (in the form approved this day and which appears as Annexure A to these Orders).
5.The changeovers for time spent will take place inside the MacDonald’s Family Restaurant in Suburb E with either supervisor or other nominated person, to attend changeover in the absence of the father.
6.That each of the parents do all acts and things necessary to undertake assessment and obtain a psychiatric report by Dr F with the father to fund the cost of such psychiatric assessments at first instance and be reimbursed one half of the costs from the mother to be paid from her entitlement (if any) to a final alteration of property interests.
7.That the independent children’s lawyer have liberty to apply for a telephone mention before me in the event that the supervisors (or either of them) is unavailable to facilitate the father’s time in paragraph 3 of this Order for a period of over a week.
8.That until either or both Ms D and Mr C are available, or in the event either are unavailable to undertake supervision pursuant to paragraph 4 above, supervision of the time spent by the child with the father shall be undertaken by G Family Services and the cost of such supervision to be borne solely by the father AND IT IS NOTED that supervision by G Family Services has been confirmed for 4 September 2016.
9.Save as provided for in this Order, the Order made on 14 December 2015 remain in full force and effect.
10.Otherwise, all interim applications be dismissed and this matter be placed in the list of cases awaiting allocation to a judicial docket.
11.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.
AND IT IS DIRECTED:
12.That the paginated copy of the communication books as provided by the mother to my Court Officer on 15 August 2016 pursuant to paragraph 4 of the Order made on 12 August 2016 be marked Exhibit “A” and remain on the Court file.
13.That each of the mother, the father and the independent children’s lawyer be provided with a paginated copy of the communication books as provided by the mother to my Court Officer on 15 August 2016 pursuant to paragraph 4 of the Order made on 12 August 2016.
14.That the blue folder envelope from the mother delivered to my Court Officer on 15 August 2016 pursuant to paragraph 4 of the Order made on 12 August 2016 be given to the independent children’s lawyer who can place the communication books with the Subpoenaed Documents Clerk of this Registry, copy anything else, and return the balance of the contents of the envelope to the mother after the father’s practitioner has had an opportunity to see what the mother has delivered.
15.The independent children’s lawyer contact the Proper Officer of Victoria Police and enquire specifically whether Victoria Police have any objection to the documents produced on subpoena being inspected by:-
a) the father;
b) the mother;
c) both parents.
ANNEXURE “A”
UNDERTAKING AS APPROVED BY THE COURT:
A.I am (name of proposed supervisor).
B.I have received and read a copy of the Orders made on 1 September 2016.
C.Pursuant to these orders the father is to have time with the child B born … 2013 (“the child”).
D.I state that I will fully supervise the time until I am no longer required to do so by the Court.
E.I understand that I am to be present at all times that the father is with the child. At no time will I leave the child alone with the father. I will be in the presence and hearing of the child and the father at all times.
F.In the event that the child becomes distressed at any time in relation to the time with the father I will cease the time immediately and return the child to the mother.
G.Should the father, and any other person who is (with my agreement) present:-
i) denigrate the mother in the presence or hearing of the child;
ii) make inappropriate comments in relation to the mother in the presence or hearing of the child;
iii) physically discipline the child;
iv) act in any other way inappropriate towards the child or mother;
I understand that I am to cease time and notify the mother and the independent children’s lawyer by phone and in writing of the relevant behaviour and my concerns.
H.That as supervisor I will take the child to the toilet and attend to all associated arrangements, so that the child is never out of the sight or hearing of myself or another supervisor.
I.I understand the nature and accept my responsibilities as a supervisor and I understand that if I breach this undertaking that there are serious consequences and I may be guilty of contempt of Court and may be punishable by way of fine or imprisonment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Viney & Riley 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).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7497 of 2015
| Mr Viney |
Applicant
And
| Ms Riley |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This matter comes before me from the Senior Registrar’s duty list. It was before the Senior Registrar on 11 August 2016 and not reached. This part of the proceedings concerns parenting arrangements for the child, who is two years old (born on 5 November 2013) and resides with the mother pursuant to an interim order on 14 December 2016. The Order also provided for the father to have face-to-face time with the child twice each week but the mother has unilaterally stopped time and the father and the child have not seen each other face-to-face nor had any communication for five weeks.
The issues requiring determination are:
·who should be appointed to supervise the father’s face-to-face time with the child, which time is currently ordered to be eight hours on Sunday and three hours on Thursday each week;
·whether there should be extra periods of face-to-face time to compensate the father and the child for having missed time since 14-July 2016.
A more pervasive issue is the difficulty of crafting parenting arrangements when the spend-time parent is assessed as having a very good relationship with the child but there are allegations, here numerous criminal charges, of serious family violence perpetrated by the spend-time parent against the parent who has primary care of the child and it is beyond the reach of the court to make findings about at this interim stage in parenting proceedings.
Background and Procedural History
B is the only child of each parent. Both parents are in their early 30’s. The father is employed in a senior managerial position. The mother is not currently employed outside the home. The parties commenced cohabitation in 2005. They separated after the weekend of 14 June 2015 when the mother obtained an ex parte family violence order at the Suburb H Magistrates Court, which named her and the child as aggrieved family members. The effect of the family violence order was that the father had to immediately vacate the family home and was prohibited from contacting the mother or the child.
The father sought legal advice about the family violence proceedings and on 7 July 2015, he obtained a variation of the family violence order, which enabled him to exercise any time pursuant to any parenting orders under the Family Law Act 1975 (Cth) (“the Act”). However, at that point, he did not have any parenting orders so he was required to start afresh seeking parenting orders in this court.
These proceedings were initiated by an application filed by the father on 10 August 2015.
The matter first came before me on 10 September 2015. I made orders for the appointment of an independent children's lawyer, and, in due course, Ms Mary Lonergan of Victoria Legal Aid was appointed. I heard a detailed account from the Department of Health and Human Services (“DHHS”) Family Law Liaison Officer, Ms I, on DHHS’s involvement with the family. I took evidence of a general nature from a family consultant, Ms J, about childhood development and the impact on each parent, and the child, of prolonging the interruption in face-to-face involvement between the father and child who, at that point, the father had not seen for about two months. Ms J had not seen the parents or the child. The evidence of Ms I and Ms J was transcribed and is in the possession of the parties. I ordered, inter alia, a report by Mr K, Child Psychologist and that the parties each be psychiatrically assessed in anticipation of a hearing before the Senior Registrar on 14 December 2015.
In due course, Mr K produced his report dated 9 December 2015.[1]
[1] Exhibit “ICL1”
Dr L was selected to prepare the psychiatric assessment of both parties. The parties attended for the psychiatric assessment interviews with Dr L but no psychiatric assessments have eventuated. Partway through the assessment Dr L was informed that the husband had been charged with criminal offences of a sexual and violent nature as well as for numerous breaches of various domestic violence orders in relation to the mother. Dr L notified the independent children's lawyer that he preferred not to interview any further or to complete his assessment.
The mother is the complainant for all of the criminal charges which the father faces — some 36 counts of contravening domestic violence orders, the four counts of rape, and the two counts of sexual assault. The father’s positon is that all of the allegations by the mother are either false or severely exaggerated and that her complaints are a premeditated and deliberate course of conduct to diminish or destroy the meaningful relationship between himself and the child.
There was a committal mention on 15 July 2016. The committal hearing has been set down for 10 and 11 November 2016. Counsel for the father announced that, if the father is not committed for trial in November, the father will amend his Application Initiating Proceedings to seek that the child reside in his care. As a general proposition, a criminal conviction would stand as proof of the elements of the offence for which the father is convicted[2]. However, a discharge at committal or an acquittal at the criminal trial may not, in and of itself, have much impact in this court’s consideration of the same controversy. This court’s consideration involves very different criteria referrable to unacceptable risk, an unreasonable but genuine belief of risk of harm, the mental health of each of the parties – all which stand to be determined in this court to the lower standard of proof.[3]
[2] See also Tindall & Saldo[2] 2016 FamCAFC 146 at [127], Ainslie-Wallace, Aldridge and Kent JJ. delivered 10 August 2016.
[3] Evidence Act 1995, s 140,
There are competing applications for an alteration of property interests pursuant to Part VIII of the Act. Those applications have been to a conciliation conference.
Operation of the Order made 14 December 2016
On 14 December 2015, the father was represented by Ms Vohra of counsel, the independent children’s lawyer was represented by Ms Boymal of counsel and the mother represented herself, as she does today.
An interim order was made, by consent, that the child reside with the mother. Issues around interim time and communication proceeded as a contest. Senior Registrar FitzGibbon ordered, inter alia, that the child spend time with the father each Sunday from 10.00 a.m. to 6.00 p.m. and each Thursday from 3.30 p.m. to 6.30 p.m. subject to one or both of the paternal grandparents or other agreed person being in substantial attendance (“the Order”). Time pursuant to the Order was to commence on 27 December 2015. Changeovers were to take place at McDonald’s Family Restaurant at Suburb E. No interim order was made altering parental responsibility although the father and the independent children’s lawyer sought joint parental responsibility and the mother sought that she have sole parental responsibility. The paternal grandparents were the persons ordered to be in substantial attendance during the father’s time.
The father was substantially successful on 14 December as the Order made corresponded closely to the orders which his counsel had submitted ought to be made. The mother had sought that the child spend no time with the father.
The father spent face-to-face time with the child in accordance with the Order until mid-July 2016 when the mother unilaterally ceased time.
The father last spent time with the child on Thursday 14 July 2016.
The applications now before the court and orders sought by each party
Returnable before me now is the father’s application in a case filed on 27 July 2016 in which he seeks, amongst other things, the immediate resumption of face-to-face time and makeup time with the child. On 27 July 2016 the father also filed a contravention application which was allocated 6 October 2016 as a return date. I don’t know why the contravention application was not allocated the same early return date and the application in a case; in hindsight, it would have been more appropriate than what transpired. Compensatory time is sought by the father in anticipation of the mother being found to have contravened the Order (which has not occurred) or as an alternative means of redress.
The father’s applications were served by email on 28 July 2016. The mother says that she did not open the email until about 2 August 2016. As the mother is self-represented, her failure to access her emails promptly and thereby to know about the proceedings which the father had commenced is a matter for which she must take responsibility. I do not accept that it is reasonable for the mother to expect, as she said she did, that the court would write to her confirming hearing arrangements for the father’s enforcement proceedings.
The mother informed the court that she has been advised by a lawyer to obtain an adjournment of these enforcement proceedings so that her new solicitor could prepare a response and evidence to the father’s application in a case. The mother has only recently instructed this lawyer to act on her behalf and the lawyer is yet to file a notice of address for service. The mother said that she had only just raised a personal loan to put the solicitor in funds and that no work could be undertaken until those funds are cleared.
I was not addressed on the point, which is now of no consequence, but it is unclear to me how transmitting the contravention application by email constituted adequate service having regard to the requirement in 7.05 of the Family Law Rules 2004 (“the FLR”) for special service unless the mother executed and returned an acknowledgement of service.
The application for an adjournment was opposed by the independent children's lawyer and by the father before the Senior Registrar (on 11 August 2016) and before me (on 12 August 2016).
In the course of the morning, counsel for the father obtained instructions to withdraw the contravention application returnable on 6 October 2016 with the reservation of his entitlement to bring such an application at a later date. The father’s decision to withdraw his contravention application removed what would otherwise have been an impediment to me requiring the mother to provide any evidence upon which she wished to rely in response to the father’s application in a case for parenting orders.
The father’s position altered from the orders sought in his application in a case. Now he seeks an immediate reinstatement of his time with the child, for there to be extra makeup time between himself and the child each alternate Tuesday between 3.30 p.m and 6.30 p.m, and a variation of paragraph 3 of the Order so his attendance at changeover at McDonald’s is not required. Notably, he seeks an order that the role of his parents change from them being in substantial attendance to one or both supervising all of the time.
The mother opposes the orders sought by the father. She seeks that monitoring of the father’s time with the child be increased from the substantial attendance by one or both of the paternal grandparents to being supervised and that the supervisors not include the paternal grandparents. Her ideal contact arrangement would be at a contact centre. However, it is common ground, that the unresolved criminal charges against the father make the family ineligible for inclusion in any relevant contact centre program. The mother stated that she would be agreeable to the paternal grandparents’ neighbour but that person was not at court. I am unaware whether the neighbour would be cognizant of the important and delicate task to be assumed by her and, all in all and absent evidence, it did not impress me as a viable proposal. The mother’s fall-back position was a paid supervisor although she says, and I am inclined to accept, that she is not in a position to contribute to the cost of supervision.
The independent children's lawyer supports an immediate reinstatement of time and an exclusion of the father from changeovers. Whilst appearing to be somewhat sympathetic about makeup time, counsel submitted that there was no apparent scope given that the father was otherwise entitled to see the child twice per week. At the hearing, counsel for the independent children’s lawyer, did not take exception to the paternal grandparents being the supervisors. However, as I will describe later, the independent children’s lawyer was required to submit the names of any supervisors she considered appropriate following the hearing having regard to the day’s events and oral evidence given by the paternal grandparents. By email dated Wednesday 17 August 2016 the independent children’s lawyer made clear that she no longer considered the paternal grandparents to be suitable supervisors and has proposed Mr and Ms C as replacement supervisors. The email is Annexure “A” to these reasons and I incorporate it into these reasons.
Legal representation
I should record some more details of the legal representation of the parties thus far in the proceedings.
Ms Mary Lonergan of Victoria Legal Aid was appointed as the independent children's lawyer. She filed a notice of address for service on 12 December 2015. Ms Lonergan either appears in court herself or retains experienced counsel to appear on her behalf.
The father has been represented throughout these proceedings by Kenna Teasdale Lawyers. From the bar table, I am informed that the father has spent some $100,000 in legal costs referrable to family law and criminal proceedings which have been funded by himself and loans and gifts by his parents and others. In September 2015, the father accepted the responsibility at first instance for payment of Mr K’s fees of $7,000 for the report which is in evidence. He is prepared to do so again also on the basis that the mother reimburse him for a portion of Mr K’s fees after the determination of competing financial applications. The father has presented his case in an orderly way but incurred considerable expense in doing so.
The mother’s legal representation has not been consistent. On the two very significant days, 14 December 2015 and now, she is not represented. In the context of trying to ascertain why the mother says the court should make a further interim determination about parenting arrangements, there was the following interchange:
HER HONOUR: Well, what has happened since the orders were made that makes you think that those orders are not in the child’s best interests?
MOTHER: I was self-represented that time and I didn’t know what was being said in court and I don’t think that my case was heard well enough. The independent children's lawyer sent me an email the day after the court and she said, “I never read your affidavit. Could you send me a copy?” So I’m not sure how she sided that day with – with the father’s side. And I think had I been represented properly it could have been a different, better outcome for the child. What has happened since is that there has been a lot of police involvement because since then [Mr Viney] has been charged with four counts of rape and two counts of sexual assault.
It appears from the court file that:
·At the time of filing her response, Calley Family Lawyers of Frankston acted on behalf of the mother. In the mother’s response she seeks orders that she have sole parental responsibility for the child, that he live with her, and that the child spend time and communicate with the father at times and on terms and conditions imposed by the court. They also prepared and filed her financial statement sworn 8 September 2015 and her affidavit sworn 8 September 2015 which runs to 148 paragraphs and 36 closely-typed pages.
·On 9 September 2015 a notice of address for service was filed on behalf of the mother by Berger Kordos Lawyers. When the matter came before me on 10 September 2015, Dr Ingleby of counsel appeared for the mother, instructed by Berger Kordos Lawyers. I recollect that Dr Ingleby told me that he was instructed that the mother has provided certain pertinent information to her former solicitors which was omitted from her affidavit, as sworn, on 8 September 2015.
·On 10 March 2016 a notice of address for service was filed on behalf of the mother by Galbally & O’Bryan.
·On 7 April 2016 Farrell Family Lawyers of Melbourne filed an address for service on behalf of the mother, and then, on 9 June 2016, ceased to act on her behalf and a filed a notice of ceasing to act. Thereafter the mother has not been represented.
The mother says that she has retained Ms Stephanie Reid of Pearsons in Glenroy to act on her behalf, but that Ms Reid was unable to commence acting or to act for her in this particular proceeding until she was put in funds. The mother gave evidence that she had raised $10,000 by way of a personal loan and had those moneys paid to Ms Reid and that she expects Ms Reid to be able to act for her in the very near future. Ms Reid will be the fifth set of solicitors to act on behalf of the mother.
Given the mother’s perception that she was disadvantaged when she represented herself before the Senior Registrar, I find it curious as to why she had not done more, by way of preparing affidavit evidence herself, for these proceedings. She attended court on two consecutive days without any apparent preparation.
If a litigant is disadvantaged in the presentation of his or her parenting case the child can be indirectly disadvantaged because the unrepresented litigant cannot put his or her case cogently or persuasively. This court is accustomed to unrepresented litigants. Re F: (Litigants in Person Guidelines) (2001) 161 FLR 189; 27 Fam LR 517; [2001] FamCA 348 describes the way the court should approach the question of providing procedural fairness to litigants in person [253]. The court endeavours to diminish the disadvantage of being unrepresented, but not so as to provide a positive advantage (Minogue v Human Rights and Equal Opportunity Commissioner [1999] FCA 85). For the mother to complain of disadvantage by reason of not being represented on one occasion (14 December 2015) may be regarded as a misfortune; to do so more than once could be construed as recklessness or a strategy. I will publish these reasons and invite submissions on some points subsequently. The mothers’ evidence is that she could not easily bring herself to read the father’s evidence in support of this application and, indeed, it took her days to read the reasonably short affidavit. It is essential that all parties read these reasons prior to making submissions. I expect the independent children’s lawyer to confirm this with the mother at the earliest opportunity.
Each parent is responsible for the conduct of his or her case. That includes arranging representation in a timely and reasonable manner. Henceforth if one parent becomes unrepresented, he or she should assume that he or she is required to prepare and present his or her case without the benefit (or expense) of representation. But I think this is reasonable.
The past circumstances, including the reasons for the decision and the evidence upon which the Order made 14 December 2016 was based
The gist of the case for the father is that the mother raises no new circumstances which require the court to look again at interim arrangements put in place by the Senior Registrar on 14 December 2016 beyond the concession that substantial attendance by his parents can be replaced by supervision. However, the mother asks the court to look afresh at interim time to be spent and to replace the grandparents with paid supervisors. The mother has not filed or served a response to the father’s application in a case but I permitted her to state orally the orders she seeks.
The consequences of the mother obtaining the relief that she seeks would be significant. The father and child may not be able to spend time together at the father’s home or at places familiar to the child. If paid supervisors are required, it is very unlikely that time could be spent for the duration provided for in the Order, being eight 8 hours each Sunday and three hours each Thursday, so time would effectively be reduced. The paternal grandparents may not be permitted to participate in time between the father and the child.
No parenting order is ever final in the sense that it must always be able to be changed if the best interest of the child requires but endless litigation is, of itself, not in the interests of children. Even at an interlocutory stage, the court’s determination of a controversy concerning a child should result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and the child. This is not an appeal against the Senior Registrar’s decision of 14 December 2016 nor a re-hearing of the issues which the Senior Registrar decided. However, so that I can ascertain whether current circumstances justify a change in the Order, I will consider previous circumstances including the reasons for the decision of the Senior Registrar on 14 December 2016 and the evidence upon which it was based.
It is apparent from the reasons for decision on 14 December 2016 that the Senior Registrar accepted certain facts and made observations including the following:
·B was observed by Mr K to relate extremely well to the father who seemed an important secondary attachment [34].
·B’s responses to the father were not consistent with a child who is fearful of or who has been neglected by the father or who has no or only a slight relationship, bond or attachment, with father [33].
·There was nothing in his assessment of what is best for the child and if any risk is posed, which warranted more than substantial attendance. The use of a contact service (had one been available) would have caused further delay and those services have limitations upon the frequency and duration of time, at best perhaps once a fortnight, for two hours maximum [34].
·It was not in the child’s best interests for his time with the father to be restricted to brief visits each two weeks [34].
·The father’s case was that the mother’s evidence was redolent of irrational behaviour, variation of the facts, a distortion of the truth to suit her own narrative and perspective on events. For instance the mother’s invitation to the father to attend, without any other adults present, just mother and the child, for his birthday celebration. The Senior Registrar was satisfied that the invitation to dinner was an action by the mother which should be taken as a stark contrast to the picture the mother otherwise painted of him [37].
·He concluded at [39] that the mother’s evidence was unreliable even in an untested state. He found that certain documents produced on subpoena by Hodgson did not support the manner in which the mother’s affidavits are drawn [38]. Likewise, documents produced under subpoena by DHHS and the Suburb M Hospital are not consistent in any way with the case and the facts as asserted by mother [39].
·It is a credit to Ms Riley as to how the child responded to his father. There is often a potential for a parent to endeavour to alienate a child or say or do things that could regardless of intent provoke a particular adverse response in a child about the parent concerned. That seems clearly not the case [70].
·There is likely a need to go beyond more than just the positive steps that the mother has taken twice a day to remind the child of the father such as having the father’s photograph on display [70].
·The Senior Registrar concludes that, on balance, any risk to the child is not of an extent and degree or type that he should decline altogether to permit any form of time, face-to-face, being spent by him with his father or only order supervision [75].
·Having regard to the recommendations made by Mr K and supported by the independent children’s lawyer and his consideration of the evidence, the Senior Registrar was satisfied that this is not a case where supervision in the strictest sense necessary [75].
The Senior Registrar stated [64] “I cannot resolve the conflicting evidentiary and factual disputes. [Mr K] is but one part of the evidence, but he is a significant part of it as an eminent and well regarded clinical psychologist working in this area. He is cautious in what he opines and indicates. He is however deliberate and clear in what he recommends, and that is that there needs to be checks and balances.
Notably Mr K’s report states:
· [Mr Viney] presented as a controlled man with a somewhat rigid personality, who conveyed a measured perspective to his presentation. [Mr Viney] conveyed a sense of disbelief at the allegations directed at him and comprehensively denied he was physically, emotionally, sexual or financially violent and abusive. He denied categorically the portrayal of him as controlling, or that he was obsessed with pornography or that he was a misogynist. [Mr Viney] told me that the only person who would describes (sic) him in this manner is [Ms Riley], and that her portrayal of him is not shared by anyone who knows him [26].
· [Ms Riley] presented as a tense and anxious woman, often providing large amounts of detail in her attempts to convey the depth and the gravity of her concerns regarding [Mr Viney] and the risks to which she believes that their son the child is exposed. There was an intense, at times terse quality to her presentation [8].
· [Ms Riley] maintains that [Mr Viney] is a violent and dangerous man, who lacks a capacity for insight and empathy, and who is not genuinely interested in the welfare of [the child] and remains a very real risk to [the child’s] emotional and physical safety and welfare [24].
· There can be no denying the seriousness of the allegations raised by [Ms Riley]. There is a compelling quality to her recounting of allegations of physical, emotional, financial and sexual abuse, and these need to be taken seriously [63].
· I note that as a general observation, [Ms Riley’s] presentation conveys a sense of risk and danger, and a perception that no one can look after [the child] as well as she can; there is a pervasive sense of risk and danger to [the child] from others, including her (sic) mother [66].
· Obviously the truth of the allegations will have enormous bearing on the outcome of this matter and a testing of evidence will be a crucial consideration as well be a Psychiatric assessment of both parents. However there is also a developmental truth that cannot be ignored. The behaviour of [the child] in relation to his father conveys the unequivocal message from [the child] that he perceives his father as a safe base and a secure haven. He approached and engaged with his father in a manner that was effortless and familiar. The evidence of [Ms J] provides a very clear foundation to the conclusions that can be drawn [70].
[B] could not have interacted with his father with such familiarity, such confidence and such reassurance had he not had the experience with his father previously. It was my concern that [the child] would not recognize his father and would react to him as though he was a stranger; this not what occurred. Whilst I have no concern about [the child’s] interaction with is mother, it is more relevant that my concerns regarding how he might relate with his father were immediately quelled, with the conclusion that I can equivocally draw being that [the child] must have had a much more substantial history of involvement with his father in order for him to develop such a sense of trust and confidence in his father than that portrayed by [Ms Riley] [71].
There has been no appeal from the Senior Registrar’s decision.
The Hearing of this Proceeding
It was a busy duty list and this matter was dealt with in a somewhat fragmented fashion.
The family violence which the mother alleges was perpetrated on her by the father is severe and some of the mother’s allegations of violence have resulted in criminal charges. Nonetheless, no order has been sought or made pursuant to s 69ZT(3) of the Act to apply some or all of the Divisions and Parts of the Evidence Act 1995 (“Evidence Act”). This is something which the parties should consider well in advance of any final hearing, particularly as the Evidence Act applies in toto to the financial aspects of the case.
It was agreed that the mother could give evidence viva voce in response to the evidence of the father, and she did so. I asked her some questions in order to adduce certain parts of that evidence. She was not cross-examined by counsel for either of the other parties, or by me.
In the witness box, I observed the mother to be composed but an anxious witness. She became visibly upset at what appeared to be appropriate times in her relating of events which were traumatic. The mother appeared to be trying to contain her emotions but was periodically unable to do so. Her hands trembled, her voice faltered and her face crumpled and she cried. The mother’s presentation was consistent with Mr K’s description of how she presented to him. The mother appeared authentically upset and to be giving a genuine account, although without hearing all of the evidence in the case, I cannot be satisfied that it is an accurate account. My impression is that she believes her account to be accurate.
The father gave no viva voce evidence. I had read his affidavit sworn 26 July 2016 before the duty list commenced. He sat between his parents. On the other hand, the mother’s presentation was unfiltered by legal representation. I remained mindful of the disparity.
Unfortunately, I did not have an opportunity to read either the report of Mr K dated 9 December 2015 (Exhibit “ICL1”) or the Reasons for Decision of the Senior Registrar delivered on 14 December 2015 (unreported). The Reasons are some 26 pages in length, and the time available on the duty list was simply inadequate for me to be able to absorb either of those documents. I informed the parties that I would read Mr K’s report and Reasons in full after the hearing and I have done so. In the running of the case, I was referred to evidence that had been filed prior to the determination by the learned Senior Registrar of the current parenting orders.
The mother’s evidence was that:
·the numerous criminal charges relate to conduct which occurred prior to the hearing before the Senior Registrar. breaches of when the Order was made on 14 December 2015;
·prior to 14 December 2015, the father had been charged with 37 breaches of the family violence order and those charges had been adjourned four times in the Suburb H Magistrates’ Court. Unfortunately I do not know whether all charges were contemporaneous or the father was charged with a number of counts on different days;
·the father was charged with four counts of rape and two counts of sexual assault after the matter was before the Senior Registrar.
Taking the mother specifically to what motivated her to cease the child’s time with the father after the last occasion (14 July 2016), the mother’s evidence was:
HER HONOUR: When is the last time [the child] saw his father?‑‑‑Thursday, 14 July.
HER HONOUR: Okay. And when should he have seen his father after that; should it have been the Sunday?‑‑‑Yes. That was the Thursday, yes.
HER HONOUR: Okay. So what happened between the Thursday and the Sunday that made you not go on the Sunday?‑‑‑
MOTHER: I got an email – see, there has been lots of – [Mr Viney] says that there’s a lot of allegations that I’ve made against him, but there has been a lot that I haven’t put forward about him. What changed was on the – so the Thursday, the 14th was access. On the Friday was the committal hearing for the rape charges and that means that [Mr Viney] got all the evidence against him given to him, so he knows that it’s pretty serious. So I do hold fears because he did hold [the child] over a dam when I said I was leaving and he did threaten him. Sorry, I’m a bit scared about now that he does know how serious his charges are, what he could do. When he is charged or if he is charged he will lose his [qualifications], which is what he lives for.
HER HONOUR: I don’t think he will lose his degree. He might lose his certificate to practice? —
MOTHER: The certificate. Yes, that’s right. And that scares me. I don’t know his mindset. I know what he has been capable of to me and I saw what he did to the child that day, so it does scare me.
In the mother’s Form 4 Notice of Child Abuse filed 15 January 2016, the mother specified, inter alia, that the father has caused psychological harm to the child:-
·due to witnessing family violence towards the mother including punching walls and yelling at the mother;
·because he left the child unattended on a bed and the child rolled off during an argument;
·because he left the child unattended in a bath,
·because he left the child unattended in the backyard;
·because he left the child unattended in a car when he was only several months old;
·the father prevented the mother from attending to the child’s needs during the night;
·the father ignored advice from the Maternal Health Nurse about correct care for the child; and
·the father was neglectful and lacking in empathy when the child hurt himself or was unwell.
Further the mother alleges risk of family violence from the paternal grandparents who subjected the child though exposure to yelling, shouting and name calling which distressed the child making him vomit on occasion.
Mr K commented in his report:
[9] The nature of her concerns is best summarized by the contents of her Form 4 Notice of Child Abuse, in which she outlines her concern that the child is exposed to danger because of poor supervision and because he has been witness to the alleged verbal and physical abuse of her by [Mr Viney]. As a general theme, [Ms Riley] perceives there to be a danger and risk to the child by an association with his father; the issue of risk and her need to protect the child permeated through her presentation generally.
[10] [Ms Riley’s] concerns extend well beyond the Form 4 details. Not only does she have significant protective concerns for the child, but makes significant allegations of sexual violence, specifically, that [Mr Viney] raped her on at least four and possibly five occasions during the course of the marriage, that she was regularly subjected to verbal, physical and emotional abuse, that he regularly yelled and screamed at her, and at least on one occasion, threw her against a wall, that he has prevented her from leaving, has placed her under surveillance, has subjected her to constant financial control and conveyed a fundamentally misogynistic attitude, humiliated her, shared degrading material about women including pornography and probably most concerning of all in the context of the child protection issues, is the allegation that [Mr Viney] threated to throw [the child] into a dam on a Sunday morning at a reception centre at [N Town]. To a significant extent, each of these allegations and incidents are elaborated upon in the affidavit material; I note that these allegations are vigorously denied by [Mr Viney], who maintains that they are gross exaggerations and spurious allegations, and in some cases, complete fabrications.
[11]. Much of the detail and the allegations are confused and at times convoluted …
I asked the mother for a general description of that which she alleges the father has done to her. By the mother’s responses, I am satisfied that the mother holds a belief that on numerous occasions after 2008 and prior to separation the father sexually assaulted her whilst she was asleep. Prior to going to sleep the mother had self-administered sleeping tablets or was intoxicated by alcohol. I necessarily confine myself to the mother’s evidence and Mr K’s comments. I do not know what is in the prosecution’s committal brief. I know little of the nature of the 37 counts of alleged breaches of the family violence order. Documents were subpoenaed but not in evidence before me.
The mother also alleges that, post separation, the father sought to reduce his liability for child support by claiming pet food as a necessary expense. Counsel for the father stated that the father was up to date with child support payments but stopped short of stating that the father did not try to claim the cost of chicken necks and pasta for his dogs as an expense which should be taken into account in assessing his capacity to pay child support. The offence taken by the mother in this respect was palpable.
Absence of Previously Ordered Psychiatric Assessment
On 10 September 2015, both parents consented to my orders that each undergo a psychiatric assessment by the same psychiatrist. It has not been undertaken.
Counsel for the independent children's lawyer says that she understands that Dr L can now proceed with the assessment if the parties will cooperate with him doing so. There is no indication that either parent will not co-operate.
Notably, Mr K states in his report at [69] and [70] that:
[69] A psychiatric assessment will be extremely important as it would appear to me that:
(i) [Mr Viney] may have significant behavioural and personality problems and has been responsible for the perpetration of severe family violence at the more coercive, controlling end of the continuum, that has had a significant scarring on [Ms Riley] and her psychological functioning and has likely traumatized her, and implies that he is a risk to the child.
(ii) When there has been longstanding coercive, controlling family violence, contact by that parent to the child needs to be viewed very cautiously as it is often the case that the perpetrator of such violence perceives little in their behaviour that needs addressing and often perceive both their ex-partner and their children to be an extension of themselves and thereby deserving of whatever treatment they chose to provide; the implications insofar as antisocial qualities to his personality functioning would be obvious; he would fall in the Cluster B category of personality functioning, likely with antisocial traits [see reference attached]. I note the description by those known to him that does not support this categorization.
(iii) [Mr Viney] not only vigorously denies these allegation but he maintains that there are inconsistencies and significant issues pertaining to [Ms Riley], including her mental health problems, her anxiety, her long history of interpersonal problems and her inclination to alienate those around her that reflect significantly upon her and her personality functioning. Given the description by him of [Ms Riley] and her behaviour, it would be important to determine to what extent her behaviour falls more within the category of mixed Cluster B (histrionic and dramatic) and/or Cluster C (anxious, avoidant and obsessional) Personality Disorder or traits thereof; I have attached some information to explain these conditions. People with Cluster B and/or Cluster C personality disorder, or who show traits of these personality styles, tend to show and inclination towards dramatic over exaggeration, convey a view of the world that is internally consistent with these beliefs, and often portray themselves as victims; they fully invest in their unique perspective and world view; they can be manipulative and self serving, but see nothing wrong with their behaviour, and instead see the problems as existing in the other person. They show little insight and their behaviour shows a repetitive pattern of dysfunction, creating problems in their personal and interpersonal relationships. They are perceived as difficult and often as manipulative by the people around them.
[70]. Obviously the truth of the allegations will have enormous bearing on the outcome of this [parenting] matter and a testing of evidence will be a crucial consideration as will be a Psychiatric assessment of both parents.
This matter should not go to trial in this court without each of the parents having been given an opportunity to be assessed by a psychiatrist, not just for identifiable psychiatric illness but also for behavioural disorders or psychological dysfunction. Such an assessment will be likely to be of real assistance to the court at the final hearing.
It may be that the independent children’s lawyer will now consider placing this matter in the hands of an alternative psychiatrist. In any event, a practitioner who will assess the parents’ psychological functioning as well as any diagnosable psychological conditions including personality disorder will be valuable.
Both parents need to be assessed by the same psychiatrist.
If one parent now refuses to undergo a psychiatric assessment, I see only marginal benefit in the other party being assessed in isolation.
Supervision or Substantial Attendance
A high proportion of parenting cases in this court involve family violence or child abuse as those terms are defined in ss 4 and 4AB of the Act. A subset of those cases, as here, involve criminal charges relating to the same or some common allegations which will be determined in the State courts. Unfortunately we have no formalised means of managing the cases which proceed in our court and the State courts concurrently even from the pedestrian perspective of information sharing. Commonly, this court makes interim parenting and readies the case for a final hearing to coincide with what the parties understand will be the approximate date of the determination of the criminal charges at first instance.
Generally, a continuity of contact between parents and children post separation is considered to be beneficial to a child’s development. However time spent or communication between a child and a parent is preconditioned on the child being kept safe from physical or emotional abuse or other specific harm. That includes potential harm which it is assessed could be suffered by a child indirectly through the adverse impact of proposed parenting orders on his or her primary carer or another significant person (Re Andrew (1996) FLC 92-692).
Common responses to a parent seeking or opposing time or communication with a child in the midst of unresolved allegations of family violence, including pending contested criminal charges, are on a continuum of vigilance, from least the vigilant to most vigilant and include:
·An order for unsupervised face-to-face time between the alleged perpetrator and child using changeover point that does not require any face-to-face contact between the parents (such as collection and return at an accredited Contact Centre) or minimal contact between parents (such as collection and return at school or at an extra-curricular activity);
·An order for unsupervised face-to-face time with the changeovers to occur between the parents but in a neutral setting which is a public place shielded from the weather, with parking and some security surveillance and that is likely to be regarded favourably by the child, at least initially (very commonly a McDonalds Family Restaurant);
·An order for face-to-face time to be spent with a third person being “in substantial attendance” and the third person effecting the changeover;
·An order for face-to-face time or communication to be “supervised” by a named person or persons to take place at a specific location or a location suitable to the parent and the supervisor and with the supervisor attending to the changeover of the child with the primary care parent;
·An order for face-to-face time or communication to be “supervised” at an accredited Contact Centre.
I agree with the Senior Registrar’s observation [65] that supervised time is onerous and difficult on all concerned. It requires that the person or persons supervising must be present at all times so that the child and the parent cannot be left alone at any time. The child must be within the sight and the hearing of the supervisor at all times. Implicit in the Senior Registrar’s reasons is that the supervisor must be able to understand and monitor all communication between the child and the parent whose time is being supervised.
Supervision by a specific person outside a Contact Centre is capable of providing a high degree of vigilance but not for very long without the assistance of a relieving supervisor. Employment of a “professional or private supervisor” does not necessarily guarantee that the supervisor will have anything more than a working with children clearance.
An accredited Contact Centre provides highly vigilant supervision. Supervision at a Contact Centre is predicated on interchangeable supervisors. Contact Centres are designed to minimise a child’s exposure to conflictual or unsafe situations by providing safe, neutral and child-focussed venues for facilitated visits. The downsides are notoriously long waiting lists and the setting is artificial. Furthermore, this family is ineligible for a Contact Centre due to the pending criminal charges.
Substantial attendance by a third person is fundamentally different to supervision. It provides a low level of vigilance around a child’s safety because the person who is to be in substantial attendance is sometimes not present at all. The lack of a common understanding between practitioners in this jurisdiction, let alone the clients to whom they provide advice, about what constitutes the “substantial attendance” is prevalent.
I also agree with the Senior Registrar’s observation at [67]:
Substantial attendance is less onerous, but still a very significant commitment. It means, and particularly in the context of a case such as this, that whilst personal matters for a short time might be attended, or they may do something else without having to have a child in eyesight all the time, it does not mean over a period of many hours they can absent themselves and come in at the end. It is about observation.
The Legal Principles
Part VII of the Act provides the framework within which all parenting orders should be decided, including specifying matters that must be considered primarily and additionally and that the primary consideration of keeping the child safe from harm has primacy over the other primary consideration which is the court’s assessment of the extent to which it is in the child’s interests to have a meaningful relationship with both parents (for example see Goode v Goode (2006) FLC 93-286; MRR v GR (2010) 240 CLR 461; (2010) 42 Fam LR 531).
I am adopting that framework and taking that pathway without giving expression to each and every signpost along the way. This is because the parties have confined this dispute to who should supervise the time to be spent between the father and the child, which devolves into a question of safety for the child, and whether there should be compensatory time which is largely a matter of practicality.
By placing emphasis in this case on the completion of the criminal proceedings I am not suggesting that completion of criminal proceedings is a pre-requisite to a final determination in this court. However, it is a means by which to minimise the need for one party to re-litigate parenting proceedings once the outcome of the criminal proceeding is known. Indeed, neither parent seeks a determination of parenting matters on a final basis before the criminal proceedings are concluded.
At this interlocutory juncture, it is not so much the unresolved criminal proceedings which present a problem but the fact that the version of events put forward by each parent around family violence is so diametrically opposed and the evidence of neither has been tested in this court.
In fairness to the child, the parents should undergo a psychiatric assessment by our agreed expert, as ordered last year. Any psychiatric or psychological disorder and any mental health vulnerability of either parent is important to an assessment of the relative capacity of each parent to provide for the needs of the child including, but not limited to, the capacity of each parent to permit the child to have a meaningful relationship with the other parent, if it is assessed by the court that a meaningful relationship is in the child’s best interests. This is regardless of whether the court ultimately prefers the mother’s evidence over the father’s evidence and is satisfied or is not satisfied that the father poses an unacceptable risk to the child.
Is Supervision Necessary?
Seemingly it is common ground between the mother, father and the independent children’s lawyer that supervision of the child’s time with the father in necessary.
Independently of the concession, I am satisfied that the time between the child and the father should be supervised. There is sufficient expert analysis in Mr K’s assessment upon which I can be satisfied that at least one parent may be mentally ill or have a serious personality disorder which is yet to be diagnosed. That said, this would not be the first case where it turned out that both parents are somewhat but differently afflicted.
If ultimately the court is satisfied that the mother is a credible witness and the father represents an unacceptable risk of harm to the child, it will not be a difficult case to dispose of as the father would fall into the seriously anti-social, category described by Mr K [69(ii)].
If the findings of this court are unfavourable for the mother then, subject to any further expert evidence which might become available, Mr K’s report seems to indicate that:
(a)the mother could be suffering from either a post-traumatic stress disorder or other disorder which may have originated in the context of family violence at the hands of the father, in particular coercive controlling violence, or further back in her life, or
(b)the mother could be suffering from a histrionic personality disorder which has led her to fabricate and/or exaggerate the allegations she makes against the father both in this court and in the criminal charges in which she is a complainant.
I am unable to form a view as to which one of the above three scenarios is more likely than the others. If scenarios at either [76] or [77(a)] eventuate, the child requires protection from the father even in the context of Mr K’s assessment that the child would very much enjoy his time with the father. If scenario [77(b)] eventuates then the child’s interests require that his relationship with his father be protected from interruption or disconnection by the mother. Come what may, I am satisfied that the only feasible means of ensuring some stability for the child between now and a final determination in this court, is for time to be supervised.
The benefit for the mother of supervision, rather than substantial attendance, is that she should know that the child is safe even when he is not in her care. The benefit for the father is that he should be protected from what he describes are further unfounded allegations by the mother.
Accordingly, I am satisfied that the child’s time with the father should be monitored by, and subject to, supervision until a final determination is made by this court or a significant change in circumstances.
The Suitability of the Paternal Grandparents as Supervisors (or to Be in Substantial Attendance)
It is not uncommon for a party against whom allegations of family violence are made to put a great deal of effort into opposing supervision but fail to have a proposal for supervision in the event that the court orders supervision. Supervisors cannot be cobbled together quickly. They need to be vetted by the parties and/or the independent children’s lawyer and then stand scrutiny by the court. The court must assess what the facts of the case require a supervisor to do to keep the child safe and then make an assessment of whether a proposed supervisor has the necessary capacities for the task. Family members and good friends are routinely proposed because they are available and the child has a pre-existing relationship with the family member. The parents may think that it will feel more normal for a child that the family member or friend, as opposed to a stranger, is present. However, the familiarity of a family member or a friend does not automatically translate to competency for the role of a supervisor and nor does it endower the family member or friend with personal attributes of vigilance and empathy toward both parents as well as the child.
In December 2015, the Senior Registrar was satisfied that the substantial attendance of the paternal grandparents provided adequate protection for the child.
In my view, providing that the paternal grandparents are the persons to be in substantial attendance in this case, illustrates that the protection afforded by the available measures relies not only physical characteristics, such as presence and location, but also on the personal disposition of that person to each parent and the child.
It was common ground that the relationship between the paternal grandparents and the mother is hostile and that the hostility had been of long standing. It encapsulated most of the parties’ relationship of 15 years and, it appears, saw the father side with the mother against his parents until around the time of the separation.
The paternal grandparents, Ms and Mr Viney Snr, sat in court for the entirety of the case but only late in the hearing did it become apparent to me that neither had sworn an affidavit in these proceedings. My concern was highlighted because the mother alleged that there had been an incident on or about 24 or 26 March 2016. Her evidence was:
When [the father] was charged with the — with the rapes and sexual assaults at the very next drop off he yelled at me and called me an effing lunatic in front of the child and [Mr Viney’s] dad laughed at me. When I walked up [the father] was standing there sticking his fingers up and I said to him – I said to [Mr Viney’s] dad, “He’s sticking his fingers up at me.” And then [Mr Viney] turned around and said that I was an effing lunatic and [Mr Viney’s] dad just laughed, and that was in front of the child.
As she gave the evidence, the mother’s face crumpled and she started to weep.
By agreement with counsel for the father (and consistently with s 69ZX(1)(e) of the Act) both of the paternal grandparents gave some brief evidence. The transcript of the evidence of the grandparents will speak for itself.
It bears repeating that I made no finding in relation to the incident described by the mother. I am not critical of either grandparent in relation to the evidence each gave. However, I am satisfied that the paternal grandparents are partisan in favour of the father who is their only son and that they do not like or trust the mother. They are neither neutral nor independent. The mother has accused them of perpetrating child abuse (per mother’s Notice of Child Abuse described at [50] above.
Their disposition toward the mother is entirely natural. I make these observations without any criticism whatsoever of them in their capacity as grandparents but I am satisfied that it is not a good fit to have them as persons who should come into contact with the mother at changeovers let alone be the protective barrier between the father and the mother.
It follows that I will not accede to the father’s application to provide that his time with the child be fully supervised by his parents.
Following the hearing, the independent children’s lawyer proposed Mr and Ms C as supervisors. I will give the mother an opportunity to be heard on the nomination by the independent children’s lawyer. Until I have heard from the mother and the other parties have had an opportunity to respond, I have an open mind.
Each case is different and determining who an appropriate supervisor can be involves an assessment of the purpose to be served by supervision and, in this case, cautious assessment of the risk to the child. I have listened to the mother’s evidence in chief, taken into account the risks identified by her and having regard to the untested expert opinion of Mr K. My strong impression is that the mother is extremely and genuinely anxious about the child’s safety but that the father does not present the danger to the child that the mother contemplates.
I extrapolate from the mother’s evidence that the father may fatally harm the child in retaliation for being found guilty of criminal charges which would be likely to lead to term of imprisonment and him losing his entitlement to practise in his profession for some period. I am not satisfied that an offence of violence, as distinct to an offence of dishonesty, will necessarily affect the father’s professional qualifications. However, even viewed from the most sinister perspective, the evidence does not satisfy me that the child is at the kind of risk which the mother fears. Accordingly, I find that these interim parenting arrangements do not need to include the high-end vigilance provided by, say, a contact centre. the child should be, at all times, within sight and hearing of a supervisor.
It was argued before me, and has been reiterated by independent children’s lawyer, that the parties cannot afford private professional supervision. However, if I thought that private professional supervision was warranted, then I would make it a pre-condition to any time between the father and the child consistently with the requirement that protecting the child from harm has primacy over the benefit of the child spending face-to-face time with the father until a final hearing.
If I thought that private professional supervision was necessary and could not be afforded under current arrangements, I could order that the next family report be done by a family consultant employed by the court and require the father to apply the $7,000, which he proposes to use to pay for Mr K’s next family report, to the cost of private supervision.
Compensatory Time for the Father
Compensatory time is provided for in the context of Part VII Division 13A of the Act but not otherwise. I can, however, consider extra time as a further parenting order which is in the interests of the child and arrive at a determination following the legislative pathway applicable to any parenting order.
Mr K’s observation of the child with the father is consistent with the child wanting to spend time with the father. Mr K has assessed the child and the father as having a meaningful and positive relationship.
The father seeks time with the child from 3.30 p.m to 6.30 p.m. on Tuesdays in addition to the time he already has on Sunday and Thursday.
Compensatory time must be in the child’s interests rather than a reward for one parent over the other. I take into account the difficulty associated with the father spending time with the child on a supervised basis. It is going to be a strain on all concerned.
I am not satisfied that it is in the child’s best interest to order further time.
If it is not possible to implement supervision before next Sunday, which is Father’s Day, I am in favour of time taking place on Saturday instead of Sunday.
Father’s Objection to Inspection of Documents Produced by Victoria Police
A collateral issue which received little attention but I understand to be the subject of agreement was that the independent children's lawyer had issued a subpoena directed to Victoria Police on 21 October 2015 requiring production of LEAP records containing the criminal history and pending charges, family violence order, and other family violence incidents for the father and the mother, and copies of any VARE tapes and SOCIT files that relate to reports or incidents in the LEAP records. Those documents were, I understand, produced and may even have been released to inspection, however, if that were so, the latter was inadvertent because an objection to release was filed on behalf of the father and the documents ought not to have been released prior to the court determining the objection. The proposal of the father, to which the mother and independent children’s lawyer agreed, was that he and his lawyers be able to inspect the documents produced by Victoria Police prior to determination of the objection.
At paragraph 23 of the father’s affidavit affirmed on 26 July 2016 he deposes that he does not have any difficulty with the independent children's lawyer inspecting the charge sheet and other documents produced on subpoena including the police brief, but he says:
I do take issue with [Ms Riley] having access to those documents in circumstances where she is a key witness and should be precluded from having access to the Police file including the evidence of any other witnesses. It is on this basis that I have filed an objection to the subpoena issued by the independent children's lawyer, objecting to [Ms Riley] inspecting the produced documents.
Documents Produced by the Mother
The mother gave evidence that the father writes “horrible things about [her]” in the communication book. The mother was provided with a photocopy of the communication book produced by the father but could not locate the comments on a brief perusal of the copy document in the witness box.
I directed that the mother deliver the original communication books to the court on the next working day so that they could be copied. The mother attended court as directed but I am informed by my associate that the envelope delivered by the mother contained documents in excess of the communication books. I do not know what is in the envelope.
The mother is not represented and therefore might not know that all she was supposed to deliver were the books and it is wholly inappropriate to seek to communicate with the judge, in the absence of the other parties, in any other way.
I will direct that, when the parties attend court to make submissions, the envelope from the mother be given to the independent children’s lawyer who can place the communication books with the Court, copy anything else, and return the balance of the contents of the envelope to the mother after the father’s practitioner has had an opportunity to see what the mother delivered. I accept that the mother’s actions were well intentioned but proceedings must be transparent in order to be fair to the parties and, through them, the child.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett and that the following one (1) page is the appendix referred to by her Honour at paragraph 25 of these reasons for judgment.
Legal Associate:
Date: 30 August 2016
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