Supervised time contact centre best for children

Supervised time contact centre best for children

Alderson & Milburn

REASONS FOR JUDGMENT

Introduction

1. This interim hearing related to the child X born (omitted) 2013.
2. Both parties were legally represented at the interim hearing, and the Independent Children’s Lawyer (ICL), Ms Fernandez appeared to represent the child.

Material relied upon by the parties

3. The father relied upon his Affidavit filed 5 December 2016, Outline of Submissions, Exhibit B (although at the interim hearing he sought supervised time at a contact centre, consistent with the position of the ICL), and Advice of Court Result, Exhibit D, relating to an order of the Local Court at Burwood on 20 February 2017, wherein the application for an apprehended violence order, sought by the police on behalf the mother, was withdrawn and dismissed.
4. The mother relied upon her Response filed 9 December 2016, her Affidavit filed the same date, and Notice of Risk filed 13 December 2016.
5. The Independent Children’s Lawyer relied upon the Child Dispute Conference Memorandum to Court dated 8 February 2017, Exhibit A, together with her Case Outline, Exhibit C.

Chronology

6. The Court respectfully adopts the chronology of events outlined in the Independent Children’s Lawyer’s Case Outline, Exhibit C.

Proposals of parties and the Independent Children’s Lawyer

7. Again, the father revised his proposed interim orders at the commencement of the interim hearing, as far as spending time with the child. He sought an interim order in accordance with the Independent Children’s Lawyer’s proposed interim order that he be entitled to spend time with the child at the (omitted) Contact Centre for 2 hours each alternate week, on such days and times at the Contact Centre’s availability. He sought an interim order that the child live the mother. Further, he sought an order for equal shared parental responsibility.
8. The mother sought an order that the child live with her, that she have sole parental responsibility for the child, and that the child spend no time with the father. The mother also sought a restraining order in relation to the father entering, or coming within 100m of firstly, the place of residence of the mother and the child, and secondly any school, child care or educational institution attended by the child and the mother.

Relevant legal principles

9. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCAFC 1346; (2006) FLC 93-286.
10. In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
    [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

 

[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

 

In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

 

[123] Later, at [100] their Honours amplified their comments and said:

 

The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

11. Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80, 332:
    [80] As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
12. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.
13. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
14. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
15. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
16. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).
17. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
18. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
19. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) – the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.

20. The child was born on (omitted) 2013. The child has just turned four years of age.
21. The parties separated in February 2014 in (country omitted). From about August 2014 to about March 2015 the father did not see the child.
22. The mother and child came to Australia in March 2015. The parties reconciled in June 2015, the mother, according the father, apparently having returned to (country omitted) with the paternal grandmother at this time.
23. The father, and according to him, with the child, followed the mother to Australia in September 2015.
24. The mother states that the parties began living together in Australia in November 2015. She states that the parties lived together in Sydney from November 2015 until separation on a final basis in June 2016. Since June 2016, the child has not spent time with the father.
25. At this interim stage, it would appear that as at June 2016, the child had a meaningful relationship with both parents. The child would benefit from a meaningful relationship with the mother. Subject to the child not being at risk of harm when spending time with the father, it would appear that the child would benefit from having a meaningful relationship with the father.
26. Should the Court accede to the mother’s proposal that the child spend no time with the father on an interim basis, then, by reason of delays presently existing in this Court (including delays approaching 12 months for the preparation of a Family Report), such that a final hearing could not occur for at least 12 months, then by the time of a final hearing, the child would not have spent time with the father for over 1.5 years. In these circumstances, and assuming that the Court made an order for the child to spend time with the father at a final hearing, there would be a significant risk that the prospect of re-establishing the child’s relationship with the father in a timely fashion would be detrimentally affected.
27. Should the child presently begin to spend regular time with the father, there is a significant prospect that the child’s former meaningful relationship with the father can be re-established and maintained in a timely fashion.
28. The Court gives significant weight to this meaningful relationship primary consideration.

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

The mother’s affidavit:

29. The Court refers to the mother’s serious allegations of family violence perpetrated against her by the father in (country omitted), in particular following the child’s birth. These allegations include allegations of a coercive and controlling nature, in addition to sexual violence, threats to kill the mother and the child, and physical assaults upon the mother. The mother alleges the child witnessed this violence on many occasions, and would react by screaming and crying, including loss of appetite for a day or two, and withdrawal symptoms. The mother alleges that certain of the child’s symptoms ceased a few weeks after the parties separated in February 2014.
30. The mother refers to being scared that if she separated from the father the father would kill or harm her and the child in some way. She states in her culture, it is shameful to be separated or divorced. She states she did not report any of the violence to the police in (country omitted) because it is not common to do so, and that if one does, it brings shame upon the family.
31. The mother states she has been the primary carer of the child since his birth.
32. The mother alleges that in early 2014 the father began slapping the child across his face and back with an open palm whenever the father became angry at him.
33. Between February 2014 and August 2014, the mother alleges that the child spent time with the father at her mother’s home about two or three times a week for a couple of hours and her mother and sister were always present to supervise this time. Thereafter, she states the child did not spend time with the father until about March 2015 (though the Child Dispute Conference Family Consultant suggests it was June 2015).
34. The mother spoke to the father in about June 2015 from Australia. The mother alleges that she decided to give the father another chance because she believed that he could change. She says there was a reconciliation in June 2015. She went back with the child to (country omitted) in late June 2015. In July 2015 the mother returned to Australia with the child. She says the father came to Australia in early September 2015 on spousal visas. In early November 2015 the mother moved in to live with the father at his brother’s home in (omitted).
35. The mother alleges that after the parties started living together again in November 2015, the father started physically hurting the mother again in front of the child. Again the mother alleges that the father would hit the child on his back with an open palm. Again the mother alleges the child had certain adverse symptoms when and after this occurred.
36. The mother alleges an incident occurred in about mid-June 2016 involving the father, supported by his brother, shouting and swearing at the mother including making threats of physical violence to her. The mother states she went to the police and reported the incident. She states this is the only incident she has reported to the police in Australia. The parties then separated.
37. The mother alleges that in about August 2016 she had certain dealings with a woman from the (omitted) Community Services. The mother alleges that the woman told her she had certain concerns about the father “and his behaviour”. The mother alleges that, following a certain history given by the mother to her about her previous relationship with the father, a Safety Plan was drafted, being Annexure B to the mother’s Affidavit.
38. Following being served with the father’s Court documents in late August 2016, the mother went to the police and told them about her safety concerns. Then the police, on the mother’s behalf, applied and obtained on 5 September 2016 a provisional Apprehended Domestic Violence Order against the father, with the protected person being the mother and the child. Again, the father tendered evidence in Exhibit D indicating that on 20 February 2017 the application for the Apprehended Violence Order was withdrawn and dismissed.
39. The mother alleges that she is very scared of the father. She says she fears for her life and the child’s life. She alleges that she is very afraid of having any contact with the father. She is afraid that if the child has contact with the father he will harm him as an act of revenge on the mother. She states that the thought of having ongoing contact with the father makes her feel stressed and scared for her safety and the child’s safety. She is very afraid that the good progress the child has made in the last five months will come to an end if he spends time with the father.

The father’s affidavit:

40. The father denies physically and sexually abusing the mother throughout the relationship.
41. The father asserts that the mother made false allegations to the police of historical physical and sexual violence committed by him against the mother when the mother went to the police in about late August 2016 following being served with the father’s Court documents. The father asserts that those allegations of physical and sexual violence had not been mentioned by the mother to the police when she first went to the police at the time of separation in about mid-June 2016. At the interim hearing, the father’s solicitor submitted that the mother’s allegations of physical and sexual violence are diminished accordingly.

Child Dispute Conference held on 8 February 2007:

42. Not without relevance, the mother, at the above Conference, offered a number of different proposals during the course of the interview. One proposal was that the child spend no time with the father. Another proposal was that she wants the child to see the father in the daytime but not where he is currently living due to concerns she has around the paternal uncle. She also proposed that she would like the child to spend time with the father when he is older (6 – 8). The mother stated a number of times to the Family Consultant that she did not feel that the child was safe with the father, “rather that she feels an obligation to support, in some way, a relationship between father and son.”
43. The mother told the Family Consultant that she had tried one last time for the father to care for the child the day before the Child Dispute Conference, however she felt that the father had a very different attitude and mentality to her. The Family Consultant stated it was unclear as to why the mother was calling the father on the day of the interview. The mother expressed some confidence to the Family Consultant that she could talk to the father since she has a firm belief that a child should have some contact with his father, however she is unsure of how this could occur safely.
44. Consistent with his affidavit, the father denied any violence that occurred in the relationship. He stated that the mother’s allegations were only made to deny him access to the child because he had expressed a desire to have care and control of the child.
45. The mother confirmed to the Family Consultant that the child was now much more settled in his sleeping, eating and behaviour since he ceased contact with the father. The mother told the Family Consultant that the child was progressing well in terms of language and physical development.
46. The Family Consultant at the Child Dispute Conference, under the heading “Future directions”, stated that the child had not had significant contact with the father for seven months and that contact before that time had been interrupted and sometimes sporadic. The Family Consultant stated that in light of this, and the allegations of significant domestic violence, the court “may need to consider supervised contact until further assessment of the allegations can be made.”
47. Again, the father and Independent Children’s Lawyer seek an interim order that the child spend time with the father supervised at a Contact Centre, which is opposed by the mother.
48. Without proceeding to make any finding of fact, there has arguably been some inconsistent behaviour by the mother which might be thought to reduce the credibility of her allegations of family violence (for example, the mother’s resumption of the relationship with the father, her arguable failure to report to the police at the time of final separation in about mid-June 2016 her allegations of historical physical and sexual violence, and the mother’s statements to the Family Consultant indicating that she had had certain communications the day before the Child Dispute Conference with the father with a view to having the father care for the child on some basis).
49. The Court notes the mother’s statements to the Family Consultant, referred to previously, relating to a proposal (whilst noting that another proposal was that the child spend no time with the father) that the child spend time with father in the daytime.
50. Nevertheless, at this interim stage, noting the very serious and detailed allegations made by the mother against the father of family violence, allegedly occasionally committed in the presence of the child, which allegations are denied by the father, and noting the child’s absence of time spent with the father since about June 2016, the court has remaining concerns in relation to the child spending unsupervised time with the father.
51. The question is whether those concerns can be appropriately addressed and minimised in the child spending supervised time with the father at a Contact Centre.
52. The Court notes the statements of the Family Consultant that the Court may need to consider supervised contact in light of the child’s absence of spending time with the father together with the allegations of “significant domestic violence”.
53. The Court respectfully notes that there is some force to the Independent Children Lawyer’s submission that it could be reasonably anticipated that supervising staff at the proposed (omitted) Contact Centre would cease to permit the child to continue spending time with the father within the contact centre if there was any suggestion of the child experiencing any emotional detriment when spending such supervised time with the father. The court can reasonably assume that the child would not be at risk of physical harm from the father within the supervised Contact Centre setting. There is no health professional evidence presently before the Court that there is a significant risk that either the child or the mother would experience psychological harm should the child spend supervised time with the father at a Contact Centre. In all the circumstances, at this interim stage, the Court is of the view that there is no unacceptable risk of harm to the child should he spend supervised time with the father at a Contact Centre.
54. The Court has considered all the submissions of the mother to the effect that there is a significant risk that the child would experience psychological harm in spending supervised time with the father, whether presently or prospectively, in the event that ultimately the Court orders the child spend no time with the father. The Court is not persuaded by these submissions, and refers to its discussion above. In addition, the Court observes that it would be speculative at this interim stage to predict the likely outcome of any final parenting proceedings between the parties.
55. The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) – Additional Considerations

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

56. The Court refers to its discussion above under the meaningful relationship primary consideration

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

57. There is some dispute between the parties in relation to this additional consideration, at least as far as the father is concerned. Since the separation, the father maintains that he has sought to spend time with the child.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

58. There is probably insufficient evidence before the Court to meaningfully deal with this additional consideration at this interim stage.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

59. At this interim stage, the Court is of the view that the child’s meaningful relationship with the mother should not be detrimentally affected should the child spend supervised time with the father at a Contact Centre. The Court refers to its discussion above under the need to protect primary consideration. The Court gives significant weight to this additional consideration.

3(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

60. The child is four years of age.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

61. Subject to the Court’s discussion above under the need to protect primary consideration, both parties’ attitudes to the child and to the responsibility is of parenthood would appear to have been satisfactory.

(j) Any family violence involving the child or a member of the child’s family.

62. The Court refers to its discussion above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.

63. The Court refers to its discussion above under the need to protect primary consideration.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

64. These are interim proceedings.

m) Any other fact or circumstance that the Court thinks is relevant.

65. The Family Consultant from the Child Dispute Conference stated that the parties might benefit from attending a post separation parenting program, for example, Keeping Kids in Mind. The Court is of the view that it will be in the best interests of the child for the parents to attend such a program.
66. The mother seeks an interim restraining order against the father, as referred to previously. The Court refers to its discussion above under the need to protect primary consideration. At this interim stage, the Court is of the view, again acting cautiously, that the proposed restraining order will be in the best interests of the child as it will likely prevent any confrontation between the child and mother with the father outside the confines of the Contact Centre, removing any possible adverse consequences to the child or mother in the circumstances.
67. The mother seeks permission to apply for an Australian and/or (country omitted) passport for the child without the written consent of the father, and that the child be permitted to travel outside Australia with the mother without the written consent of the father. The Court notes that there is an existing interim order made on 30 September 2016 by consent between the parties preventing each of them from removing the child from the Commonwealth of Australia and requesting the Australian Federal police to place the child’s name on the family law watch list. The Court notes the mother’s evidence at paragraphs 88 to 94 of her affidavit. The Court also refers to the father’s evidence at paragraphs 38 to 46 of his affidavit.
68. The parties’ respective evidence in this context is conflicting. For example, the father alleges that at the time of separation in mid-June 2016 the mother told the father that he would never see the child again. The father alleges, inter alia, that the mother is presently studying a lot at the moment, it would be hard for her to presently care for the child, and therefore it would be easier for the mother to have the maternal grandmother in (country omitted) look after the child. The mother alleges that she has no intention of living anywhere other than Australia. She came here to give the child and herself had a better education and a prosperous future. Her sister lives in Sydney. She alleges she has no money left over from the sale of an inherited property. She says she would like to be able to travel back to (country omitted) from time to time so that the child can visit his extended family and connect with his culture.
69. At this interim stage, noting the conflicting evidence of the parties in this context, the Court is not persuaded that it should make the order as sought by the mother in this context, and the present interim order made by the Court on 30 September 2016 should remain in place.

Equal shared parental responsibility: section 61DA(1) and (2)

70. At the above Child Dispute Conference, the father told the Family Consultant that he and the mother can talk nicely to each other and he, in fact, received a phone call from the mother during the Child Dispute Conference.
71. The mother told the Family Consultant that she had tried “one last time” for the father to care for the child the day before the Child Dispute Conference, however she felt that the father had a very different “attitude and mentality” to her. The Family Consultant stated that it was unclear why the mother was calling the father on the day of the interview. She stated that the mother expressed some confidence that she could talk to the father since she has a firm belief that the child should have some contact with the father, however is unsure of how this could occur safely.
72. The above matters raised with the Family Consultant by the parties are arguably inconsistent with the mother’s assertions in her affidavit that she remains, inter-alia, fearful of the father, however at this interim stage the Court does not propose to make any findings of fact in this context. The Court is of the view that, at this interim stage, in all the circumstances, it would not be in the best interests of the child to make an express order for parental responsibility.

Equal time and Substantial and significant time

73. In light of the matters discussed above under the need to protect primary consideration, including the Court’s proposed interim order that the child spend time with the father supervised at the (omitted) Contact Centre, it would not be in the best interests of the child to spend equal time nor substantial and significant time with the father at this interim stage.