Whittaker and Healey

[2013] FamCA 1029

FAMILY COURT OF AUSTRALIA

WHITTAKER & HEALEY [2013] FamCA 1029

FAMILY LAW – CHILDREN – Interim Orders – with whom a child should spend time – best interests – consideration of family report – orders made for the children to spend time with the father under supervision of paternal grandparents – orders made for father to submit to drug tests

Family Law Act 1975 (Cth) s 60CC, 62G, 68L

APPLICANT: Mr Whittaker

RESPONDENT: Ms Healey

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 1049 of 2013

DATE DELIVERED: 20 December 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 16 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Warburton

SOLICITOR FOR THE APPLICANT: Lawyers Australia Wide

COUNSEL FOR THE RESPONDENT: Mr Noble

SOLICITOR FOR THE RESPONDENT: Bartel & Hall

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

it is ordered until further order:

1. That the children B born … 2009 and C born … 2011 spend time with the father as follows:-

   (a)For four weeks, each Sunday and Wednesday from 10am until 2pm commencing 29 December 2013;

   (b)Thereafter, each Sunday and Wednesday from 10am until 6.30pm;

   (c)       On 25 December 2013 (Christmas Day) from 10am to 2pm; PROVIDED THAT all time spent between the father and the children in paragraph 1 (a) – (c) hereof shall be supervised by the paternal grandparents.

2. That handover shall take place at the home of the paternal grandparents with the mother to be responsible for the delivery of the child at the commencement of time with the father and collection of the child at the conclusion thereof.

3. That the father is required to provide random drug tests within a period of 18 hours of any request of the mother or Independent Children’s Lawyer, not more than once a month, for a maximum of six months where if three consecutive tests are negative, this order be discharged.

4. That Order (5) of the Orders made 14 October 2014 is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whittaker & Healey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC1049/2013

Mr Whittaker

Applicant

And

Ms Healey

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was listed before me for a hearing in respect of an application filed on behalf of the applicant father on 27 March 2013 (“the application”). The focus of the application are parenting orders in respect of the children B born in 2009 and C born in 2011 (“the children”).

2. The children currently live with the mother who has sole parental responsibility. Following my orders of 14 October 2013 the father now has limited telephone contact with the children.

3. This judgment considers whether the father’s time spent with the children pending the final hearing of the matter ought to be altered in light of the s 62G(2) report prepared by Family Consultant Ms D.

Background

1. It is uncontroversial that the relationship between the parties was and remains conflicted and ultimately dissolved following an incident of alleged domestic violence.

2. Following that incident the mother was granted an Interim Intervention Order on 15 February 2013 preventing any communication or contact between the parties and between the father and the children. Notwithstanding a brief meeting for the purposes of a Family Report assessment in November 2013 the father has not seen the children since February 2013.

3. The father filed an initiating application on 27 March 2013 seeking in general terms shared parental responsibility of the children and time with the children on a week-about basis. The mother sought sole parental responsibility of the children and that there be no orders for the children to spend time with the father.

4. Upon separating with the father and without warning or notice the mother and children moved to Victoria on or about 30 April 2013. The father remained in South Australia unaware the mother and children had relocated to Victoria until a hearing in the Federal Circuit Court on 5 June 2013 where the mother attended via telephone and informed the Court of her location.

5. The father filed an Application in the Case the same day seeking to have the children returned to South Australia and, until further order, the children were to live with him.

6. In her affidavit dated 9 October 2013 the mother opposed the application on the basis that she and the children had settled in Victoria and no longer felt safe in South Australia.

7. On 3 July 2013 the mother filed a Notice as to Risk alleging, amongst other things, the father had sexually abused the child B. On 12 July 2013 Judge Simpson of the Federal Circuit Court transferred the matter to the Family Court for inclusion in the Magellan List and ordered the children live with the mother and that she  have sole parental responsibility for their care.

8. On 3 September 2013 Registrar Paxton made orders, pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”), appointing an Independent Children’s Lawyer (“the ICL”) to represent the interests of the infant children.

9. In addition, the Department for Education and Child Development (Families SA) were requested to prepare a report as to the allegations of the mother and the general circumstances of the children. I have had the opportunity to consider the Project Magellan Report of 27 September 2013 (“the report”).

10. The matter came before me on 3 October 2013. Mr Warburton appeared for the applicant father, Mr Noble of Counsel appeared for the respondent mother and Mr Hemsley of Counsel appeared for the ICL. I made orders that the mother be restrained and an injunction was granted restraining her from causing the children to engage in any counselling or therapy or any other examination in respect of the mother’s allegations that the children had been the subject of sexual or physical abuse.

11. On 14 October 2013 I made Orders requiring the mother and children return to South Australia, but in particular that she reside at her parents’ home in F Town. The mother was also to arrange for telephone contact between the father and the children every Monday and Thursday evening for a maximum duration of 30 minutes. While no Order was made for the children to time with the father there was an obligation on both parties to register with the E Town Children’s Contact Centre.

12. I adjourned until 16 December 2013 to consider what further time, if any, the children should spend with the father following the preparation of a s 62G(2) report.

Law

1. In giving consideration to the appropriate Orders to be made arising out of an interim application, I am nonetheless bound by the parenting provisions of the Act. In particular, I am bound to give consideration to the provisions of s 60CC noting that pursuant to s 60CA, I must at all times apply the test that the best interests of the child are the paramount consideration.

2. In giving consideration to s60CC in terms of how a Court should determine what is in a child’s best interests, I note that there are primary and additional considerations. In particular, under s 60CC(2) the primary considerations are:

   (2)(a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (2)(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or violence.

3. In particular s 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).

4. Accordingly, the Court must give primary focus to the need to protect the children from abuse, neglect, violence or harm.

5. While I do not propose to list the additional considerations contained in s 60CC(3) of the Act, I give specific attention to those matters.

Report of Ms D

1. I heard submissions from all parties relating to the recommendations outlined in the Family Assessment Report prepared by Ms D on5 December 2013. The primary issue being whether the children ought to spend time with the father under the supervision of the paternal grandparents as detailed in paragraphs 90 and 91 of the report.

2. The recommendation of the Family Consultant gain significant weight from her following observations:-

   51.      [C] appeared to immediately begin to restore his bond with his father.  When the writer sent [Mr Whittaker] to bring his mother, [C] appeared sad that his father was leaving.  For [B], her relationship with her father, or the restoring of it, appeared to be more complicated.  She was a little more reserved.  At the same time, it was clear that she has a bond with her father and there was no indication that she has any fear of her father.  Her slight reserve seemed more consistent with some discomfort about the whole situation.  She was clearly a little troubled, and not really understanding the purpose of the occasion, and her level of stress became more apparent at the end of the observation period when the writer spent a little time with the children.  [Mr Whittaker] had tried to express some thoughts to [B], about the long time he had not seen them, saying,“I need a little more time [B], I know it’s not fair, I know you don’t understand, I need a bit more time we have to do this the right way”.  This father struggled to manage his strong feelings about the situation in a setting where he was seeing the children for the first time in nine months.  Aspect of this situation may have been overwhelming for [B] who already seemed burdened in relation to her parents.

   52.      The paternal grandmother was included in the observation of the children with their father after about half an hour.  [B] appeared very pleased to see her grandmother.  [C] appeared to be struggling to remember her at first.  With the paternal grandmother present, B seemed to relax a little more and cuddled with her father, and then spent time at the whiteboard with her grandmother, writing words.  [C] was focussed on his father and appeared to be very comfortable interacting with his father.  [B] did ask the writer where her mother was, and also asked her grandmother where the children’s grandfather was, indicating her memory of him.

   53.      Following the observation, [B] was asked about her experience.  She seemed somewhat overwhelmed and was quiet and subdued.  She was asked about what it would be like to see her father again.  She looked away, hesitant.  The writer asked her if she were “not sure?” and [B] indicated that this was the case, and said, “Not sure”.  When asked if it would be good to see her father with her paternal parents as well, she seemed a little more confident, and she nodded.

3. Mr Warburton noted the writer examined information surrounding the allegations against the father but does not come to a conclusion that those allegations warrant any caution other than supervision by the paternal grandparents. Mr Warburton also emphasised the longer the physical separation continues the harder it will become for the father to re-establish a relationship with the children.

4. Counsel for the wife opposed the recommendation for visits to be supervised by the paternal grandparents and sought a full report be prepared following a number of visits to a Children’s Contact Centre. The ICL also suggested a graduated approach to the visits with an initial period of visits conducted at the Children’s Contact Centre followed by affidavits filed by both parties.

5. Notwithstanding the serious allegations made by the wife, I see little benefit in using the Children’s Contact Centre to facilitate these visits.

6. Alternatively counsel for the wife submitted that if the recommendation for supervised visits with the paternal grandparents was to commence, that these visits were subject to periodic reporting. 

7. The ICL noted the paternal grandparents are described as suitable supervisors with whom the children would be comfortable and provided they comply with the Legal Services Commission of South Australia’s guidelines for supervising visits this is an arrangement supported by the ICL.

8. The report also recommends that should the father not be present during these hours, the children would still spend time with the paternal grandparents. Counsel for the wife opposed this recommendation and this is not an order I will make at this stage of the proceedings.  In any event the father did not seek such an accommodation.

9. These orders are not for the grandparents’ benefit; these orders are for the benefit of the children and their relationship with their father. The grandparents are present during these visits in a supervisory capacity.

10. Counsel for the wife also opposed the recommendation put forward by the writer that the mother not move more than a twenty minute drive from the paternal residence. The location of the parties may become relevant when this matter requires a final determination but until such time it would not be appropriate to make an order requiring the mother to move yet again having recently ordered the mother to return to F Town.

11. All parties raised concerns regarding the existing telephone contact arrangements and the manner in which these were conducted following an affidavit filed by the mother on 9 December 2013. The mother’s affidavit reveals notes taken by her during the conversations between the father and the children.

12. Irrespective, if contact between the father and the children resumes the telephone arrangements become unnecessary and should cease immediately to prevent further stress to the children.

13. Mr Warburton sought an opportunity to respond to the issues raised in the mother’s affidavit but noted that the information contained in the affidavit did not affect the recommendations contained within the report, and would therefore not affect the father’s submissions.

14. All parties agreed to the writer’s recommendation that the father submit to random drug testing. Following allegations made by the wife in her affidavit, and admissions made by the father in the course of the preparation of the report, the father will submit to random drug testing over a period of six months. I note contact will resume immediately and will not be conditional upon the father’s completion of the drug testing regime either in whole or in part.

Conclusion

1. For the foregoing reasons, I make the orders that commence at page 2 of this judgment.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 December 2013.

Associate:

Date:  20 December 2013