YERBY & KANE
[2011] FMCAfam 1489
•16 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YERBY & KANE | [2011] FMCAfam 1489 |
| FAMILY LAW – Children – parenting orders – supervision –whether father’s time with the child needs to be supervised – best interests of the child – whether need to protect the child from physical or psychological harm – where supervision may cease after one month. PRACTICE & PROCEDURE – Independent Children’s Lawyer – observations on the role of Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC |
| Applicant: | MR YERBY |
| Respondent: | MS KANE |
| File Number: | PAC 2684 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 15 and 16 December 2011 |
| Date of Last Submission: | 16 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Graves |
| Solicitors for the Applicant: | David H. Cohen & Co |
| Counsel for the First Respondent: | Mr Cairns |
| Solicitors for the First Respondent: | Lexington Law Group |
| Counsel for the Independent Children’s Lawyer: | Mr Ladopoulos |
| Independent Children’s Lawyer: | Hamish Cumming Family Lawyers |
ORDERS
The time spent by the child, [X], born [in] 2009 is to be supervised by Ms W or her nominee until 16 January 2012, after which time such supervision shall cease.
The cost of the supervision is to be shared between the parties.
The Independent Children’s Lawyer is discharged with effect from 16 January 2012.
No order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Yerby & Kane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 2684 of 2010
| MR YERBY |
Applicant
And
| MS KANE |
Respondent
REASONS FOR JUDGMENT
This is a matter relating to a little boy called [X]. [X] was born [in] 2009. His mother and father have separated in acrimonious circumstances. The Father had sought, through these proceedings, to re-establish a relationship with his son and spend time with him on a regular basis. The Mother has expressed fears and concerns about the Father based not on his present behaviour but on things that she said took place during the marriage.
This is a matter where the Court considered it appropriate to appoint an Independent Children's Lawyer to represent [X]’s interest. I would have to say that the work done by the Independent Children’s Lawyer, Mrs Nicola Adams and her counsel, Mr Ladopolous, have assisted the Court greatly and, I have no doubt, have assisted the parties greatly.
Indeed, the parties previously a long way apart have negotiated a set of consent orders which are detailed and comprehensive and deal with almost every aspect of the arrangements needed to be made for [X] to spend time with his father. Order 3 provides a graduated program so that [X] will spend more time with his father as he gets older. He is, after all, not yet three years of age. He turns three on [date omitted].
The issue that needs to be resolved by the Court is whether there is a need for continuation of supervision of [X]’s time with his father. The Mother says that there is and nominates a period of six months. The Father says that it is no longer necessary. The Independent Children’s Lawyer is of the view that the necessity of supervision seems largely have gone.
I am aware of the fact that supervision has been conducted by Ms W, a social worker, who conducts a service to provide supervision in these circumstances. She has, at times, other people working for her. I have had the benefit of reading the Family Report prepared by Ms S, who is a psychologist, and I have had the benefit of reading the affidavit of
Ms W which was sworn on 6th December and filed in this court on 13th December, to which is annexed a comprehensive contact report by
Ms W. This report covers the history of the supervision that has taken place over a period of time. The supervision was conducted mainly by Ms W herself, although on two occasions, a nominee of hers, Ms L, filled in for Ms W.
It is fair to say that the report by Ms W as to the supervision of [X] is highly positive. The attitude of the father is praised by Ms W who says:
At all times, Mr Yerby was observed to accept the role of supervision, including the conditions relating to the first three visits where no other family members attended. He displayed a willingness to accept and follow through with strategies and behaviour that would enhance and develop the father-son relationship.[1]
[1] Affidavit of Ms W 6.12.2011 Annexure “A”
The report goes on to set out the history of [X]’s interaction with his father and after the initial three visits, extended members of the paternal family, including, on all occasions, the paternal grandparents. In that regard, Ms W says:
The importance of family to Mr Yerby was strongly valued and evidenced when the visits with his son, [X], took place. The family embraced the presence of Mr Yerby’s son and with [X], appearing to feel comfortable and understanding of the positions of his paternal relatives. Mr Yerby was clearly pleased. On each visit, [X] was observed to quickly become comfortable and relaxed in the presence of the extended family.[2]
[2] Affidavit of Ms W 6.12.2011 Annexure “A”
Ms W goes on to express the opinion that [X] has developed an attachment to his father as a significant person to him and refers to him as “Ba Ba”, meaning Papa or father. The overall view that comes from Ms W’s report was that the routine of the visit appeared comfortable and consistent for [X] who enjoyed the attention of his father, and the father, according to Ms W, appeared to gain much pleasure on seeing his son respond to other family members whilst at the same time responding to him as the most significant other amongst family.
This is a most positive report. It is clear that the Father has complied with the requirements of supervision and has taken the opportunity to use this time to build up a positive and nurturing relationship with his son. However, the Mother is of the view that the supervision should continue for a period of up to six months, which was conceded by her counsel to be a somewhat arbitrary period. The view was that by then, [X] would be that much older and more able to communicate his wishes and needs. In fact, he would be three years and three months old by that time.
Counsel for the Mother, Ms Graves, and counsel for the Independent Children's Lawyer, Mr Ladopolous, are of the view that this was no longer necessary based on the affidavit evidence of Ms W and based on the views of the family consultant.
This is particularly set out in paragraph 51 of the Family Report where the family consultant said:
The supervision seems to have served its purpose in supporting [X] re-establishing his relationships with his father and paternal family.[3]
[3] Family Report 2.12.2011 page 16 paragraph [51]
At paragraph 52, the family consultant goes on to say:
Further supervision no longer appears necessary and there was no information gathered in this assessment suggesting that [X] is at risk while in Mr Yerby’s care. Consideration could therefore be given to reducing the supervisor’s role over the next few visits so that [X] can become used to care giving tasks being undertaken by family members.[4]
[4] Family Report 2.12.2011 page 16 at [52]
Ms Graves of counsel was of the view that as there is no safety consideration then supervision could well and truly cease. She pointed out relevantly that supervision costs money, a significant amount of money, as the Father has been paying $250.00 per week. With the increased time that [X] will be spending with his father, that would go to $500.00 per week, and in fact, over the next six months, if supervision were to continue for that period of time, should the Court consider it necessary, some simple arithmetic would mean that the Father would be paying some $13,000.00 which is an expensive amount to pay and leads to the question of whether it would be necessary.
It certainly seems to have been put that the necessity for the continuation of supervision is to allay the Mother’s anxiety rather than to enhance the security and protection of the child. It goes without saying that under section 60CA of the Family Law Act 1975, when making a parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
The Court considers the matters in subsections (2) and (3) of section 60CC of the Act when determining what is in a child’s best interests. The primary considerations are set out in subsection (2) and are, of course, the benefit for the child of having a meaningful relationship with both of, in this case, his parents, and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
An additional consideration which is relevant here is that set out in subsection – 60CC(3), paragraph (b):
The nature of the relationship of the child with:
(i) Each of the child’s parents; and
(ii) Other persons (including any grandparent or other relative of the child).
It seems no longer necessary for supervision to continue for any period of time to protect [X] from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I am satisfied that it is of benefit to this child to have a meaningful relationship with both of his parents. I am satisfied that there has been demonstrated a strong relationship with his mother, a growing, nurturing, positive relationship with his father and a growing, nurturing, positive relationship with his paternal grandparents and other members of this child’s extended family and it is clear that [X] has benefited from this period of time and has been warmly wrapped in the embrace of the extended family.
Clearly, the Mother needs to move on from her concerns about whatever may have happened during the marriage. This is not to downplay her concerns at all but I am relying very much on the affidavit evidence of Ms W and I am mindful of the suggestions of the family consultant that this is a matter where supervision has either served its purpose or largely served its purpose and that the Court should indeed consider phasing out this supervision over the next few visits.
I do not see that there is a need for this child’s time with his father to be supervised for the next six months. I would have thought that a period of one month from now would be sufficient. During that period of time, when [X] will be two years and nine months old, it will be helpful if both the supervisor and the child's parents could get him used to the idea that the supervisor’s time will be coming to an end but that his father is there to look after him, as are his grandfather and grandmother and other members of his family.
I am satisfied on the evidence that this child will be comfortable and in the presence of his family and if this arrangement is made clear to him over the next four weeks or so that he will adapt to this transition comfortably and well, and I am satisfied that that is in this child's best interests.
It is for that reason that I make the order that the time spent by the child, [X], born [in] 2009 is to be supervised by Ms W or her nominee until 16th January 2012, after which time such supervision shall cease.
I will be removing the application from the list of cases awaiting finalisation but I will hear any submission that counsel for the Independent Children’s Lawyer wishes to put to me about certain administrative matters.
I make no order for costs in respect of the Independent Children's Lawyer.
Independent Children's Lawyer is discharged with effect from 16th January 2012, however, the Court will express thanks to the Independent Children's Lawyer for her work and that of counsel for the Independent Children's Lawyer in assisting the parties and the Court in this matter. It is, I think, well known that I personally place a high degree of responsibility on an Independent Children's Lawyer when appointed. I am seldom disappointed. I should say, that the Independent Children's Lawyer, generally, plays a strong and positive role in this Court and I consider that that should be acknowledged. That is certainly the case in this particular matter and the Independent Children's Lawyer deserves the praise not only of the Court but of the parties and I would like to thank counsel and their instructors for their assistance.
The cost of the supervision is to be shared between the parties.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 17 January 2012
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