ADAAB & RELEHEB
[2010] FMCAfam 282
•5 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ADAAB & RELEHEB | [2010] FMCAfam 282 |
| FAMILY LAW – Interim parenting – supervised contact with mother. |
| Family Law Act 1975, s.60CC |
| Applicant: | MR ADAAB |
| Respondent: | MS RELEHEB |
| File Number: | SYC 7363 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing date: | 24 February 2010 |
| Date of Last Submission: | 24 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid NSW |
| Counsel for the Respondent: | Ms Black |
| Counsel for the Independent Children’s Lawyer: | Mr Thomas |
| Solicitors for the Independent Children’s Lawyer: | Coleman & Greig Lawyers |
THE COURT ORDERS PENDING FURTHER ORDER THAT:
Orders (1) – (7) made by Justice Stevenson on 7 September 2009 remain suspended.
That the child, [X] born [in] 2001 live with the father.
The father have sole parental responsibility for the child.
Order that the mother spend time with the child under supervision with a supervisor approved by the Independent Children’s Lawyer or otherwise at the [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre (whichever is available first) on one day each fortnight and to facilitate such time;
(a)Each party must:
(i)Contact the [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre within seven (7) days to arrange an appointment for assessment for suitability
(ii)Attend the assessment
(iii)Comply with any appointment made by the [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre
(iv)Comply with all reasonable rules of [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre
(v)Comply with all reasonable requests or directions of the staff of the [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre
(vi)If [[H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre following its intake procedure is unable or unwilling to provide supervision as set out above then either party shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court
(b)If the parties are accepted by [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre following intake procedure then the mother is to spend time with the child on days and times as nominated by [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre and such time is to be implemented by the father delivering the children to [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre at the start of the mother’s time with the children and collecting the children from the same place at the end of the mother’s time.
(c)The parties shall each pay the fees nominated by [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre for the provision of its service.
THE COURT ORDERS THAT:
The matter be adjourned for 3 day final hearing to 8, 9 and 10 November 2010 at 10am.
Each party file and serve any affidavits on which they intend to rely by no later than 29 October 2010. No further affidavits to be filed after that date without leave of this Court.
The Applicant pay the hearing fee or obtain a waiver of that fee at least 14 days prior to the hearing date.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which each party will rely at hearing; and
(b)The Orders sought at hearing.
Pursuant to Part 15 Rule 9 of the Rules, an expert be appointed to prepare a report addressing the issues identified in the memorandum on the court file OR in a joint letter of the parties to the expert, such expert to be agreed by the parties, or failing agreement, such expert to be appointed by the Child Representative.
I DIRECT that, upon completion, the expert report be forwarded to my Associate by email to [email protected].
The parties have liberty to apply on 7 days notice.
The parties have leave to file consent Orders in chambers.
IT IS NOTED that publication of this judgment under the pseudonym Adaab & Releheb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7363 of 2009
| MR ADAAB |
Applicant
And
| MS RELEHEB |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
Ex Tempore
REASONS FOR JUDGMENT
This matter relates to [X], the eight year old daughter of the applicant father and the respondent mother. It is a deeply troubling matter. I heard an interim application on 24 February, over a week ago, and I have delayed giving these reasons and making these orders because I needed the time to reflect on the case.
Before explaining the present application and my decision, it is necessary to set out a procedural history of this case. On 7 September 2009, Stevenson J published her reasons and made orders in the litigation between the parents. This litigation started in 2007 and was heard by her Honour over a period of seven non-consecutive days in 2008 to 2009. Her Honour ordered equal shared parental responsibility, save for education, in respect of which the father had sole parental responsibility. Also she ordered that [X] live with the father from Sundays to Wednesdays each week and half the school holidays and also, to live with the mother the rest of the time.
There are some particularly disturbing findings of her Honour that I should highlight once again, but noting that these were referred to in my ex tempore reasons on 22 December 2009. For example, at paragraph 28 of her Honour's judgment, she recognised the priority that the child, [X], should have the opportunity to strengthen her relationship with her father. At various paragraphs, including 29, 47, 70, and 71, her Honour said that she thought it was unlikely that the mother would encourage and facilitate the father's relationship with [X].
At paragraph 36, her Honour notes that the family report said that the child's attitude and behaviour did not confirm the mother's claims that [X] does not want to see her father and is afraid of him. At paragraph 37, her Honour concluded that there was no need to protect [X] from harm or abuse whilst with the father.
At paragraph 47, her Honour concluded that there is a need to protect the child from psychological abuse by her mother. At paragraph 53, her Honour noted that the mother projected on to [X] her own alleged unhappiness with life in Australia. At paragraph 67, she noted that any reluctance which [X] may show in going to her father is likely to be generated by her awareness that her mother does not support the relationship with the father. As I say, I have simply highlighted some of the findings of her Honour's judgment.
By way of an application filed on 2 December, returnable 3 December in the first instance, the father sought urgent interim orders that [X] live with him, suspension of previous orders, and a recovery order. In short, his case was that the mother had failed to implement the orders of Stevenson J, had unnecessarily involved the police, had denied contact, that [X] was reported to be in a state of neglect and had been taken out of school – all matters contrary to the orders of the court. In addition, he alleged that [X] had been taken by the mother to a psychologist.
On 8 December, I set the matter down for interim hearing on
23 December and gave the mother the opportunity to file some material, and by this stage the independent children's lawyer from the previous proceedings had become re-involved. The mother did file a response in which she sought orders that [X] live with her, sole parental responsibility, that the mother be entitled to change her schools, and the father have supervised contact. The mother's affidavit, at the time, referred to a number of matters; firstly, and perhaps foremost, dissatisfaction with the proceedings and the judgment of Stevenson J and also dissatisfaction with the independent children's lawyer.
The affidavit sets out the mother's evidence about [X]'s reluctance to go on contact. The affidavit sets out concerns about the contact that actually did take place between [X] and her father. It articulates concerns that the father would harm her; concerns about family violence perpetrated by the father against the mother during cohabitation, which the mother asserts was witnessed by [X]; also, that [X] had witnessed violence perpetrated by the father against others. The affidavit contains concerns about the father’s character, concerns about getting her to school every day, and about taking [X] out of her school, which was at [S].
On 23 December I made certain orders which, in effect, suspended orders 1 to 7 made by Stevenson J. I ordered [X] to live with her father, that he have sole parental responsibility, and a number of other ancillary orders. In addition, I adjourned the matter to 24 February for a further interim hearing, and it was contemplated then that the issue of [X]'s contact with her mother would be revisited.
This outcome, that is, the orders of 23 December, were advocated, in effect, by both the father and the independent children's lawyer and on that occasion, in essence, I accepted the submission that the very concerns articulated by Stevenson J in relation to the mother were fulfilled by the mother within a near matter of months. I accepted that, in effect, the mother had little or no regard for orders of the court; that she maintained beliefs that had been rejected at the hearing. I accepted that there were real issues about [X]'s dental health and schooling whilst in the mother's care, and real issues about the mother's inability to foster her relationship – that is, [X]'s relationship – with her father.
When the matter came back before me on 24 February to consider the issue of [X]'s time with her mother, the mother was represented on this occasion and her proposals are contained in the case outline document that was prepared by her counsel, Mrs Black, and in effect, she sought orders discharging the existing orders for equal shared parental responsibility, for [X] to live with the father each alternate week from after school on Friday to before school on Wednesday, half school holidays, and so forth.
The father and independent children's lawyer's proposals were basically that the orders of Stevenson J remain suspended, that [X] live with her father, have sole parental responsibility, and that there be supervised contact only at a supervised contact centre. I note that the proposals were really quite polarised.
I had the following evidence before me; the mother's affidavit that was filed on 19 February, the father's affidavit filed on 22 February, and I had the submissions that were made by each party. In terms of the mother's affidavit, just to highlight the issues that were raised by her, she expresses at a number of points contrition about previous acts. For example, she says at paragraph 2 that she understands now why I made the orders on 23 December, that she understands the importance of [X] spending meaningful time with her parents, that she seeks orders that [X] spends substantial time with "both of us" – that is, both parents. She stresses that she was, in effect, the primary carer for the child up to 23 December and she remains available to do so.
She stresses, at paragraph 8, for example, that she understands that in future she must comply with all court orders. She understands and accepts, at paragraph 9, that it is in [X]'s interest to have continuity of education and that she is prepared to ensure that she attends school regularly. And she expresses some concerns about [X]'s schooling at [S].
The father's affidavit acknowledges that when [X] came into his care on 23 December she was distressed, but he deposes that soon after, she settled down. She commenced school, or recommenced school, at [S College] on 1 February in year 2, and he has been taking [X] to see a dentist and she has had some oral surgery. In regard to his proposal for supervised time, he expressed his concern that if time were not supervised, [X] might not be returned and that the mother might further question the child and seek to make further allegations. He also expresses concerns about the risks of telephone communication.
So with that background, and the issue being whether, and if so, under what circumstances [X] should spend time with the mother and communicate with the mother, I ask myself the question: what are the issues? The case is difficult, and I must express the view that I think that whatever decision I make, it is fraught with some risk. I think I can state what is not an issue ‑ and I say this specifically for the sake of the mother – this is not about punishing the mother for perceived breaches of orders, plain and simple. These are not enforcement proceedings. The situation is much more complex than that.
The matters that have come to my attention in the material raise issues about emotional abuse of [X] by the mother. The matters before me raise issues about the nature of the mother and father's relationship and the appropriateness of the mother projecting on to [X] her own views and feelings about the father. I think there are real issues about the mother failing to encourage and facilitate the father's relationship with [X] without any good reason.
I think that the evidence before me raises issues about the mother's ability to meet even the basic physical needs of the child, such as dental health. However, the mother says in her affidavit that she has, in effect, learnt a lesson; that she has had an epiphany, presumably as a result of the orders I made on 23 December, and she says that she will now comply with these orders. And yet one cannot but feel somewhat cynical about this and that, in effect, the mother is simply seeking to have another bite of the cherry – a rehearing, in reality, of the matters that were adjudicated exhaustively by Stevenson J. For example, if one compares the orders made by her Honour to the orders sought by the mother before me on 24 February 2010, a number of interesting things emerge. She proposes that [X] live with the father from Friday to Wednesday each alternate week, which is five out of 14 days per fortnight, whereas her Honour ordered Sunday to Wednesday each week, or six out of 14 days a fortnight.
The mother proposes equal shared parental responsibility, whereas her Honour gave to the father sole parental responsibility in relation to education, such were her concerns about the mother's capacity to meet the educational needs of this child. I think that these differences actually give quite an insight into the mother's position. She clearly remains unhappy and unaccepting of the final orders that were made by Stevenson J. On the one hand she says, in her affidavit at paragraph 2, that she now understands why I made the orders I made, but nonetheless adopts a position which is different to the final orders made. She doesn't express an understanding of why Stevenson J made the orders. She says in her affidavit, at paragraph 8, that she understands she must comply with court orders, but her own proposal demonstrates an inability to accept the court's orders as they are manifest in those orders made by Stevenson J. This is hardly material that inspires the court's confidence about the mother's willingness to comply if she can't even accept the court orders.
Before I can make the orders that, in effect, restore the orders made by Stevenson J, let alone make the orders sought by the mother, I would have to be reasonably confident that she would accept and comply with them, together with, of course, being satisfied that the orders would be in the best interests of [X]. Well, I am not. She is clearly not accepting of Stevenson J's decision and under these circumstances, I am entitled to retain the concerns about the issues that I have articulated before and which were so clearly articulated by her Honour. However, I accept that [X] needs to maintain a relationship with her mother, subject only to protecting her from the concerns identified in this case. I accept that supervision is necessary in circumstances where there are legitimate concerns about emotional abuse and undermining the relationships.
The mother proposed, at the last moment, a supervisor unknown to the independent children's lawyer or the father. In these circumstances, I cannot accept this proposal. That leaves, in the absence of agreement, a supervised contact centre. I am satisfied that contact would be safe in these circumstances and would be monitored. I accept, however, that there might be difficulties in getting access to this service. That is regrettable, but unavoidable.
I had contemplated setting this matter down for an early hearing; indeed, I think I may have suggested dates in June. I have changed my mind about this. I accept that there may be a delay in getting access to a supervised contact centre. It is possible that, on a worst case scenario, no contact might occur before June, and any informed decision about [X]'s future must contain evidence about the nature of her contact with the mother, and on this basis, it is best to postpone the hearing to a later date. Telephone contact is problematic, I think, for the same reasons as unsupervised contact is, at least for the time being.
I am going to ask the independent children's lawyer to consider whether this case is appropriate for a part 15 expert's report rather than another family report, and I am going to give leave to relist on seven days' notice to deal with this particular issue. I intend to make, in effect, the orders sought by the independent children's lawyer with this amendment at paragraph 4 of the orders sought. In the first line it talks about supervision and I am simply going to insert the words:
With a supervisor approved by the independent children's lawyer, or otherwise at the [H] Supervised Contact Centre.
In other words, the effect of the amendment is that if the mother and the father and the independent children's lawyer can agree, or even if the mother and the independent children's lawyer can agree about another approved supervisor, then that will be an alternative to the supervised contact centre.
I wish to record on the transcript aspects about the statutory pathway that I trust is reflected in these reasons. Firstly, I find under section 60CC(2)(b) that there is a need to protect [X] from psychological harm. I find under section 60CC(3)(c) that there are issues about the willingness of the mother to facilitate an ongoing relationship between [X] and the father. Under section 60CC(3)(f), I have concerns about the capacity of the mother to provide for [X]'s emotional and physical needs. Under section 60CC(3)(i), I am concerned about the mother's attitude towards the responsibilities of parenthood. I am satisfied under section 61DA (4) that the presumption of equal shared parental responsibility has been rebutted, because it is not in the best interests of [X], and pursuant to section 65DAA, it is not in the best interests of [X] to have either equal time or substantial and significant time.
Accordingly, I propose to set this matter down for hearing on 8 and 9 November 2010. I am going to direct the parties to file and serve their evidence no later than 29 October. I am going to give leave to re‑list on seven days' notice, generally, and leave to file consent orders in chambers appointing a part 15 expert, but if that is not otherwise possible, then we will need to revisit the alternatives.
I am going to request the independent children's lawyer if they would send us an electronic copy of the orders, the document that was handed up on 24 February, and I would like to encourage everybody to see if supervised contact can be established at the earliest possible time. And as I indicated before, I will be having these reasons actually published, so that the mother, in particular, can have them for the benefit of any subsequent legal advice.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 5 March 2010
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