ABBEY & WALBURN

[2014] FCCA 1440

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABBEY & WALBURN [2014] FCCA 1440

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – where father seeks to spend time with children – children are two young daughters below school age – supervision of time – parental responsibility – equal shared parental responsibility – sole parental responsibility – family violence allegations – intractable conflict between parents – appointment of Independent Children’s Lawyer.

FAMILY LAW – Children – injunction – injunction for the personal protection of children – injunction restraining either party from having female children circumcised.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 62G, 65DAA, 67N, 67P, 68B, 68L

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MR ABBEY

Respondent: MS WALBURN

File Number: SYC 3220 of 2013

Judgment of: Judge Scarlett

Hearing date: 28 April 2014

Date of Last Submission: 28 April 2014

Delivered at: Sydney

Delivered on: 8 July 2014

REPRESENTATION

Solicitor for the Applicant: Ms Maitland

Solicitors for the Applicant: Legal Aid NSW

Solicitor for the Respondent: Ms Court

Solicitors for the Respondent: John Spence & Associates

ORDERS

UNTIL FURTHER ORDER

1. The Respondent Mother is to have sole parental responsibility for the children X born (omitted) 2011 and Y (also known as Y) born (omitted) 2013.

2. The children X born (omitted) 2011 and Y (also known as Y) born (omitted) 2013 are to live with the Respondent Mother.

3. The Father is to spend time with the children X and Y (also known as Y) for a period of two (2) hours each fortnight under supervision at a Children’s Contact Centre in the Sydney Metropolitan area or for such further periods of time as the Contact Centre can arrange.

4. Order (1) made on 17 December 2013 is discharged.

5. For the personal protection of the children X and Y (also known as Y) the parties or either of them are restrained from doing any act or thing that would allow or permit either of the said children to be circumcised.

6. As provided by section 68L of the Family Law Act 1975 the interests of the children X (born (omitted) 2011) and Y (also known as Y) born (omitted) 2013 are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange this representation.

7. The parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street Sydney within fourteen (14) days copies of all Applications, Responses, Affidavits and other relevant documents for the use of the Independent Children’s Lawyer when appointed.

8. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge or further leave of the Court.

9. The parties are to attend upon a Family Consultant at a time, date and place specified by the Regional Co-ordinator of Child Dispute Services at the Sydney Registry of the Court for the purpose of preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975 AND THE COURT NOTES that an interpreter in the (omitted) language will be required for interviews.  

IT IS NOTED that publication of this judgment under the pseudonym Abbey & Walburn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3220 of 2013

MR ABBEY

Applicant

And

MS WALBURN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for interim parenting orders by the Father of two little children aged two and a half years and seventeen months, respectively. The Father claims that he has not seen the children since he and the Mother separated in March 2013.

2. The Father proposes that he spend time with the children for three hours each Monday, under the supervision of one Ms L.

3. The Mother opposes the Application. Although she seeks no interim orders in her Response filed on 3^rd March 2014, she has proposed that the Father should spend time with the children at a children’s contact centre. Her Response seeks final orders that she should have sole parental responsibility for the children and that they should live with her.   

Background

1. The Father’s solicitor, Ms Maitland, has very helpfully prepared a detailed chronology, which she has included in her Outline of Case Document, and I have had some reliance on that document to set out the relevant background details.

2. The Father was born in (country omitted) on (omitted) 1963. He is now 50 years of age, about six weeks short of his 51^st birthday.

3. The Mother was also born in (country omitted), but she is somewhat younger than the Father, having been born on (omitted) 1979. She is aged 35 years and 6 months.

4. The Father immigrated to Australia in 1989 and obtained Australian citizenship in 1992.

5. In 1997 the Father was seriously injured in a train incident. Both of his legs were amputated below the knee and his right arm was also amputated.

6. The Father commenced a relationship with the Mother early in 2009 and they were married in (country omitted) on (omitted) of that year. Later in 2009 the Father sponsored the Mother to immigrate to Australia.

7. The parties’ first child, a daughter, was born on (omitted) 2011. She is now 2 years and 8 months old. The parties’ second child, also a daughter, was born on (omitted) 2013. She is aged 17 months.

8. In March 2013 the Father returned home from TAFE College and found that the Mother had left the matrimonial home with the two children. He did not know where she had gone.

9. On 23^rd May 2013 the Local Court of New South Wales at Waverley made a final Apprehended Violence order against the Father, naming the Mother and the two children as the protected persons. The Apprehended Violence Order was for a period of twelve months from 23^rd May 2013, so it has recently expired.

10. The terms of the Order were the standard Orders that:

    a)The Father must not assault, molest, harass, threaten or otherwise interfere with the protected persons;

    b)The Father must not engage in any other conduct that intimidates the protected persons; and

    c)The Father must not stalk the protected persons.

11. There were two additional orders:

    4. The defendant must not go within 50 Metres of the premises at which the protected person(s) may from time to time reside or work, or other specified premises.

    5. The defendant must not approach or contact the protected person(s) by any means whatsoever except through the defendant’s legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975, as to counselling, conciliation or mediation.

12. The Father commenced proceedings in this Court on 12^th June 2013, seeking a Location Order through Centrelink so that court documents could be served on the Mother.

13. On 1^st July 2013 the Court made ex parte Orders under the provisions of ss. 67N(2) and 67P(1) of the Family Law Act 1975 (Cth) providing that Centrelink was to furnish to the Registry Manager of the Court at Sydney information about the location of the children, and the Registry Manager was given leave to disclose that information to the Father’s then solicitor, Ms Claire Cantrall, but not to the Father personally.[1]

    [1] Abbey & Walburn [2013] FCCA 716

14. In due course, the Mother was served with the Father’s Application for parenting orders.

15. The Application was returnable on 9^th December 2013 but the Mother advised that she could not attend as she had an urgent medical appointment. The Application was adjourned to 17^th December 2013, on which date there was no appearance by the Mother.

16. The Father had filed an Amended Application on 12^th December 2013, in which he sought an order restraining the Mother from having either of the children circumcised. An order to that effect was made ex parte on 17^th December 2013.

17. The Application was adjourned to 3^rd February 2014. The Mother attended Court and agreed to attend mediation.

18. The Application was adjourned to 3^rd March 2014. The Mother had obtained legal representation and her solicitor filed a Response and a supporting affidavit that same day.

19. The Application for interim parenting orders was heard on 28^th April 2014.    

Evidence and Submissions

1. The Father relied on the following:

   a)his affidavit sworn on 3^rd April 2014; and

   b)the affidavit of Ms L sworn 9^th April 2014.

2. The Mother relied on her affidavit affirmed on 23^rd April 2014.

3. It was the Father’s evidence that he has three adult children from a previous relationship. The eldest child, a son, has returned to live in (country omitted) but the two younger children, a daughter and a son, both live with their mother in Perth.

4. The Father deposed that the Mother was his carer throughout the relationship, as he needed assistance with day to day tasks. He stated:

   She cooked and cleaned for me and was the person who was primarily responsible for the day-to-day care of the children.[2]

   [2] Affidavit of Mr Abbey 3.4.2014 at paragraph [14]

5. However, the Father claimed that he assisted the Mother in caring for the children as best he could. When the Mother went out, the Father was responsible for the care of the children. He would look after them for about four or five hours at a time. A neighbour would assist him with changing a child’s nappy when necessary.

6. The Father deposes that has a very good relationship with his neighbours, including Ms L. He can call on his neighbours for help if he needs to.

7. The Father denies in his affidavit the Mother’s claim that he was violent to the Mother in the form of financial and emotional abuse. He denies that he told the Mother to take the parties’ daughters back to (country omitted), or that he pushed one of the children or ran into her with his wheelchair.

8. The Father denies the Mother’s claim that he used to come home smelling of alcohol. He states that as a practising (religion omitted) he does not drink alcohol, although he did so in the past. He claims that he has not drunk alcohol for at least ten years.

9. The Father denies failing to provide food or clothes for the family. He denies that he threatened to have the Mother killed.

10. The Father claims that when the Mother left she withdrew the sum of $1,500.00 from the parties’ joint savings. He then accessed the remaining $1,700.00.

11. The Father is particularly concerned that the Mother might have the children circumcised, saying:

    In (country omitted) when girls are aged between two and four years they will normally be circumcised.[3]

    [3] Affidavit of Mr Abbey 3.4.2014 at [47]

12. The Father claims that the Mother told him that she would like to have the girls circumcised. He states:

    I am concerned as X is now over two years old. I do not wish for the children to be circumcised. I have heard from members of our community that they have circumcised their daughters and one of them had travelled to meet with someone in Melbourne who conducts the procedure.[4]

    [4] Ibid at [49]

13. The Father deposed that, whilst he denies that he was physically or verbally abusive with his wife or the children, he will agree to supervision of his time with the children. His proposal is that his neighbour, Ms L, will supervise his time with the children. He seeks to spend three hours at a time with the children on a Monday or a Tuesday.

14. The Father deposes:

    My Housing Department unit has been modified to make it wheelchair accessible, they widened the doors and lowered the kitchen, the bathroom has rails. The apartment is big enough for X and Y to run around and play in and also be contained. As they are active, growing girls, I want to make sure they can’t run outside and be unsafe.[5]

    [5] Affidavit of Mr Abbey 3.4.2014 at [64]

15. In her affidavit, Ms L deposed that she is a (occupation omitted) by profession, holding a (qualifications omitted) in (occupation omitted). She works at a (employer omitted) on weekends. She has been a neighbour of the Father for about fifteen years and speaks highly of him in her affidavit.

16. Ms L deposed that she was willing and able to assist the Father by supervising his time with the children, saying:

    14.Due to Mr Abbey’s disability he requires assistance in looking after the children. I am able to assist Mr Abbey with spending time with his children on a Monday or a Tuesday each week for 2 to 3 hours at a time.

    15.I am able to assist Mr Abbey at his home with X and Y by making sure they are contained in his apartment, that they are supervised and I am able to assist with feeding them and changing nappies.[6]

    [6] Affidavit of Ms L 9.4.2014 at [[14]-[15]

17. The Mother deposed in her affidavit that the Father would be controlling and abusive to her and about the children. In particular, she deposed that:

    a)He would tell her to take the children back to /(country omitted) or put them in a rubbish bin;

    b)He would refuse to purchase food for the children;

    c)He would not purchase clothing for her or the children;

    d)He refused to give her the money to take the child X to see a consultant paediatrician;

    e)A neighbour named Ms D used to purchase clothes for the children and give them to the Mother, and the Father sent her a threatening email;

    f)The Father would go out of the house at 10:00am and return home after midnight smelling of alcohol;

    g)The Father had threatened to buy a gun and kill her;

    h)On one occasion in 2012 the Father had ordered her out of the house and the Father arranged for a woman called Ms R to take her into her home for a week before returning her to the matrimonial home.

18. The Mother deposed in her affidavit that she separated from the Father on a final basis on 28^th March 2013. She claims that he said to her:

    “You are greedy. You have to leave the house. I will divorce you. I will make the divorce at the (omitted).”[7]

    [7] Affidavit of Ms Walburn 23.4.2014 at [24]

19. The Mother deposed that when she left the Father she had no clothing or shoes for the children and she obtained assistance from the Salvation Army.

20. The Mother also deposed that she moved into a women’s refuge in April 2013. In July of that year she left the refuge and moved into other accommodation.  On 21^st February 2014 she moved into a three bedroom town house.

21. Disturbingly, the Mother claims that the Father’s relationship with his adult daughter is poor to non-existent:

    In October 2013 the Applicant’s daughter, A, came from Perth to visit me when I was sick in hospital. A said to me: “I don’t have any relationship with my dad and I don’t want him, but I want to see my half-sisters.”[8]

    [8] Ibid at [40]

22. The Mother denies that she intends to have the children circumcised.

23. The Mother opposes the appointment of Ms L as a supervisor for the children, claiming that the Father told her that she smokes cocaine and used to borrow money from her.[9]

    [9] Ibid at [49]

Applications for Parenting Orders

1. Where a Court is asked to make parenting orders, it must have regard to the objects of Part VII of the Family Law Act 1975, which are set out in s.60B(1), and the principles underlying those objects, which are set out in s.60B(2) of the Act.

2. Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child (or children, as the case may be) as the paramount consideration. Section 60CC sets out the way that the Court determines what is in children’s best interests, having regard to the primary considerations in subsection 60CC(2) and the additional considerations in subsection 60CC(3).

3. Section 61DA requires the Court to apply the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. This presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the children’s best interests to apply the presumption.

4. When a Court is making an interim order, as in this case, subsection 61DA(3) provides that the presumption applies unless the Court considers that it would be appropriate in the circumstances for the presumption to be applied when making the order.

5. It is noteworthy that s.61DB provides that if there is an interim parenting order in relation to a child, when the Court is making a final parenting order it must disregard the allocation of parental responsibility made in the interim order.

6. Section 65DAA applies when the Court has made an order that the children’s parents are to have equal shared parental responsibility for them. In that case, the Court must consider whether it is both in the children’s best interests and reasonably practicable for them to spend equal time with each parent (s.65DAA(1)). If the Court is not of that view, it must consider whether it would be in the children’s best interests and reasonably practicable for them to spend substantial and significant time with each parent (s.65DAA(2)).

7. All of the above matters have been considered.

Conclusions

1. This is not a matter where an order should be made that the parents should have equal shared parental responsibility for the children. The Father has not seen the children for over a year; the younger child was only a month old when he last saw her. There are allegations about family violence, abuse and controlling behaviour, which are vigorously denied by the Father.

2. However, it is a fact that there has been in force until recently an Apprehended Violence Order made by the Local Court against the Father, naming the Mother and the two children as the protected persons. True it is that the Father says that he agreed to the order without admissions, but the order was still made. The fact that a family violence order was made without admissions does not mean that the order does not Count.

3. In this case, I am satisfied that it is not in the children’s best interests for their parents to have equal shared parental responsibility for them. I propose to order that the Mother is to have sole parental responsibility for the children.

4. I note that the Father in his documents and the Mother in hers differ as to the spelling of the name of the parties’ younger daughter. The Father spells her name as “Y”, the Mother spells the name as “Y”. For more abundant caution I will refer to the child by both of those names in the Orders to be made.

5. In determining the best interests of the children, the Court must consider the benefit to the children of having a meaningful relationship with each of their parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. There is a great difference between the evidence of the two parents about the relationship between them before the Mother left with the children. The Court is not in a position to make any finding of fact as to whether the parties’ relationship involved abuse or family violence, due to the truncated nature of the proceedings and the inability to test the evidence by cross-examination (Goode & Goode[10] at [68]).

   [10] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

6. It is obvious that the parties’ relationship is in conflict. The Father has not seen either of the children since March 2013, a period of 16 months. This is a very long time in the lives of these two little children. The younger child was less than two months old when she last saw the Father, so there would be no attachment to him whatsoever. He would be a complete stranger to her.

7. It will take a long time for the children to develop a relationship with the Father. In my view, a period of two hours at a time would be the most at this stage that the girls could cope with. The Father concedes that his time with the children should be supervised, and proposes that his neighbour, Ms L, should be the supervisor.

8. The Mother does not agree that Ms L should supervise the children and I am not prepared to make an order requiring her to supervise the children’s time with their father in the face of the Mother’s opposition.

1. The Father’s solicitor, Ms Maitland, submits that a contact centre would be disadvantageous because children’s contact centres are, generally, only able to provide supervision on a fortnightly basis. Given the very young ages of the children, it is developmentally appropriate for them to spend time with their father as often as possible. The Father has already made inquiries of the Sydney Children’s Contact Centre and has found out that there is currently a four to five month waiting time for supervised visits at that centre. In addition, due to his disability as a triple amputee, the Father would be required to provide a support person when he attends at the centre. He has not been able to find a suitable support person at this stage.

2. However, unless the Father can make some other arrangement for an acceptable supervisor at the former matrimonial home, there does not seem to be any other alternative to a contact centre.

3. In my view, interim orders should be made providing for the children to live with the Mother and spend time with the Father for a period of two hours per fortnight at a suitable contact centre, or for such further periods as the contact centre may be able to arrange.

4. I am also of the view that the allegations of violence in the parties’ relationship and the apparently intractable conflict between the parties come within the guidelines for having the children’s interests independently represented by a lawyer as set out by the Full Court of the Family Court in Re K[11]. Notwithstanding the fact that the children are still very young, I propose to order that their interests be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975.

   [11] (1994) 17 Fam LR 537; FLC 92-461

5. I previously made an ex parte order on 17^th December 2013 restraining the Mother from having either of the children circumcised. I note from the Mother’s most recent affidavit that she deposes that she does not intend to have this done. The Father has previously expressed a concern that this will be done.

6. In my view, the appropriate course to take is to issue an injunction directed to both parties, for the personal protection of both children, restraining them from permitting the children to be circumcised.

7. I will also direct that the parties should attend upon a Family Consultant for the purpose of preparation of a Family Report under section 62G of the Family Law Act 1975. I note that an interpreter in the (omitted) language will need to be arranged for the benefit of the Mother.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  7 July 2014