Alfonso and Alfonso - [2010] FMCAfam 1304

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALFONSO & ALFONSO

[2010] FMCAfam 1304

FAMILY LAW – Interim arrangements for parenting of child aged 19 months – serious allegations of family violence – should father’s time with child be supervised by professional or lay supervisor – best interests.

Family Law Act 1975, ss.60CC, 61DA

Applicant:

MS ALFONSO

Respondent:

MR ALFONSO

File Number:

ADC 1642 of 2010

Judgment of:

Brown FM

Hearing date:

9 July 2010

Date of Last Submission:

9 July 2010

Delivered at:

Adelaide

Delivered on:

9 July 2010

REPRESENTATION

Counsel for the Applicant:

Ms Ross

Solicitors for the Applicant:

Howe Martin & Associates

Counsel for the Respondent:

Mr Eid

Solicitors for the Respondent:

SPK Legal

ORDERS

The child [X] born [in] 2009 live with the mother.
The parties do all things necessary to complete interviews at either the [H] Children’s Contact Centre or the [C] Children’s Contact Centre or any other Children’s Contact Centre in the metropolitan area to access their suitability to take part in the supervised contact program.
If the parties are deemed suitable to take part in the program, the father spend time with the child subject to the following conditions:
(a)The time take place at such Children’s Contact Centre under the supervision of the Director of such centre or his/her nominee;
(b)There be no more than one session per week which is not to exceed two (2) hours in duration;
(c)After six visits the parties are to obtain a report from the Director of the Centre regarding the child’s reactions to the visits at their joint expense; and
(d)The costs of the supervised contact also be at the joint expense of the parties.
Paragraphs 2, 3 and 4 of the order made on 6 May 2010 continue.
The parties have liberty to apply on short notice.
Further consideration of the matter is adjourned to 8 November 2010 at 9.30 am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 1642 of 2010

MS ALFONSO

Applicant

And

MR ALFONSO

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally, immediately following the interim hearing. Given the case is proceeding, it is appropriate that the reasons be transcribed and released to the parties concerned.
This afternoon I have to deal with an interim application which deals with arrangements for the care of one child, [X], who was born [in] 2009. The parties to the proceedings are [X] parents - Mr Alfonso, her father, and her mother, Ms Alfonso.
By way of background, as I understand things, the parties met in 2006. They married [in] 2008 and separated in February 2010. Mr Alfonso is a person who was born in Iran. He is a Farisi speaker. Farisi, I think, is his first language. He has lived in Canada in the past. It is certainly his case that he has not lived in Teheran for a considerable period of time. He is 38 years of age.
The mother is an Australian national, as I understand it. She is 41 years of age. It was the mother who commenced these proceedings. She did that on 3 May 2010. Originally she sought some orders which would have resulted in [X]’s name being placed on the watch list. This is a list which the immigration authorities keep at each point of departure from Australia of the names of children who are not to leave this country.
The mother’s position, in May 2010, was that she was fearful that, given the father’s connections in Iran, there was a real possibility that this child might leave this country and be taken to Iran. I was prepared to make an order placing [X]’s name on the watch list, on an ex parte basis. That is in the absence of any submission from the father.
At that stage Mr Koufalas appeared for the mother and, I think, I said to Mr Koufalas that there was inevitably always two stories in every case, but I was prepared to make the order, which he sought, because I was satisfied that it may lead to some peace of mind on the mother’s part as I accepted that she was apprehensive that there was, at least, some possibility that the child might leave this country.
But I indicated to him (Mr Koufalas) that I expected, in due course, the father would put his version of events, which was likely to be very different to that of the mother. In any event, I reached the conclusion that there was no harm making the order sought because, clearly, if there was to be a dispute between the child’s parents, that dispute needed to be sorted out in this country, where the child had been born and the parties themselves lived.
I was also of the view, at that time, that there was more benefit in trying to ease the mother’s anxieties about that possibility of the child leaving the country than in delaying what seemed likely to be an inevitable decision. So I made the order and the proceedings were adjourned to 24 June.
In the meantime, the father has brought an application in which he seeks to spend time with [X]. That is the issue which I have to determine today. It is a difficult issue to determine because it is the mother’s case that, during the parties’ relationship with one another, she was subjected to quite serious violence at the father’s hand.
She alleges that she was on occasions slapped and spat at by the father. She was pushed and otherwise assaulted by him and was subjected to quite serious verbal abuse. Essentially, it is the mother’s case, that the father is unable to control his anger or his temper and, when frustrated or angry, he has a propensity to behave in an irrational and explosive way.
The father disputes that he is the violent person who has been painted by the mother. It is his case that it is the mother, and members of her family, who are derogatory and dismissive of his culture. He asserts that they are stereotypically prejudiced against him because of where he was born, and have tried to – that is the mother and her family - have tried to characterise him as something he is not.
The mother was granted a domestic violence order on 25 February 2010. I understand that there is some criminal charge against the father. I understand that he will be contesting the charges, if they are pursued.
At this stage both parties have filed lengthy affidavits. In addition, in each of their cases they rely on affidavits which members of their family have also sworn. I am unable to determine this case merely on the basis of the number of affidavits which have been filed.
This is an interim hearing and what that means is this. At this stage, I have not the time available to me to have a detailed and thorough investigation of all the evidence that the parties will want to call, which involves cross examination of the various affidavits currently before me.
Accordingly, I am not in a position to ascertain the truth, or otherwise, of what either of the parties have said about the other. I am unable to make findings of fact, is the face of contradictory affidavit evidence. The mother’s case is supported by members of her family. She has also provided some photographs of what she says are injuries or bruises which were sustained.
The father’s position is that the mother has, in the past, behaved inappropriately to him and aggressively to him. What is undoubtedly true is that the parties separated in very difficult circumstances in February of 2010 and I suspect, from each their points of view, they are still coming to terms emotionally with the consequences of that.
The father has not interacted with his daughter since the parties separated in February of 2010. It is now, of course, July 2010, and as Mr Eid, the father’s lawyer, forcefully and eloquently puts it, “that’s about a third of [X]’s life.” I acknowledge this state of affairs.
It is a significant period of time and from the father’s point of view, I acknowledge that these early years of childhood are precious because you cannot have them again, and he wishes to interact with [X] and get to know her and, more importantly, for her to get to know him.
It is important from the father’s point of view that [X], as a child who is half Persian - for her to be able to be involved with a positive Persian role model. He categories himself as such an appropriate role model. The mother has a different view.
The mother’s point of view is that she is fearful that, if the father spends any time with [X], other than in the most rigorously supervised setting, there is a risk that the father may behave in a violent or irrational way for some reason and she is fearful that this will be traumatic both for her and [X].
Her lawyer, Ms Ross, concedes that there is a possibility that the mother may be reacting to a fear which is irrationally based but it is her (Ms Ross’) submission that from the mother’s perspective these fears are very real nonetheless and must be given some credence by the court because of their possible effect on the mother, as [X]’s primary carer to discharge her parenting responsibilities.
I am satisfied that this is a case where it would not be appropriate for me to apply the presumption of equal shared parental responsibility [Family Law Act1975 section 61DA]. Although I cannot make any positive findings of fact, I am satisfied there are reasonable grounds for me to believe that there has been some level of violence in the parties’ relationship.
In any event, given the obvious tension and difficulties between the parties, it is just not appropriate for them to have equal shared parental responsibility for the child and therefore, it is not necessary for me to consider an equal time or substantial and significant time arrangement at this stage.
In any event, the father, to his credit, I think, concedes that, at this stage, the court is not likely to be thinking about anything other than a supervised arrangement. This follows, I think, from what occurred when the parties were referred to Mr T, who is a family consultant, on 24 June 2010 pursuant to section 11F of the Family Law Act.
Mr T interviewed each of the parties and he was of the view, and he so advised the court, that given the significant allegations of violence in this case, the court ought to take a cautious approach in regards to future arrangements for [X].
The father concedes a cautious approach is warranted, although he refutes the allegations against him. However, he is concerned that if a professional supervisor is nominated to supervise his time with [X] a number of problems will arise. The problems can be easily summarised.
At this stage there will be a considerable waiting list to get into any of the contact centres in Adelaide. It is likely to be somewhere between six to ten weeks, but more likely ten weeks and perhaps even twelve weeks. Regrettably, at this stage there are few places available at such contact centres and the demands on them are great indeed.
Secondly, such contact centres only provide a finite amount of time, two hours per week at most, more usually two hours per fortnight, for a parent to interact with a child. From the father’s point of view, that would be an insufficient time for him to repair his relationship with [X]. He is fearful and apprehensive that his relationship with her has perhaps already been irreparably damaged or at least retarded and a process of professional supervision will hasten this process.
Thirdly, of course, although such centres are well run by well trained people, they are necessarily institutional in nature and he is, I think, apprehensive about the prospect of spending time with [X] in such an institutional setting.
So, as an alternative, he has proposed that there be a lay supervisor. Her name is Ms G. Ms G entered the witness box and provided some sworn evidence. As such I had an opportunity to assess her at first hand and see what sort of person she is. I found her to be honest and impressive.
Ms G is a person of middle years. She is a person who has had a long career in [omitted]. She is currently employed as [omitted]. She has experience of dealing with all manner of citizens, [omitted].
She knows the father. She attended his wedding. She regards him as a friend. He has been a guest in her home with the mother. Ms G attests to the father’s good character. She has deposed, in the witness box, that she has never known him to be a violent person and she has only the highest regard for him. Ms G does not have children of her own but she is one of, I think, she told me, nine children. Sadly, she had to be mother to her younger siblings, when her own mother died.
I accept that she knows how to look after children of [X]’s age. She has nieces and nephews of her own and she is familiar with the needs of a child of [X]’s age. She was an impressive person. In my estimation an honourable person. As I said earlier, she is prepared to stick out her neck, as it were, for the father because she regards him as a good person and also she is concerned that [X] is not able to spend time with her father currently.
On that basis, she is prepared to offer her home in [suburb omitted] as a venue for the father to spend time with [X]. With that in mind, I have told her some of the issues and potential difficulties in this case. She has told me she has no axe to grind with the mother, whom she knows. She accepts that in the mother’s eyes she will be seen as being aligned with the father but from her perspective, that is, Ms G’s perspective, the most important consideration is the needs and security of [X].
I accept her evidence in that regard. Ms G knows [X] as she attended her first birthday. She has not, of course, seen her since that time and, I think, I am able to reach the conclusion that Ms G and [X] do not have a particularly close relationship.
Ms G knows [X] but it is probably more likely than not that [X], given her age, will not remember her previous interactions with Ms G which occurred at her birthday party when [X], for obvious reasons, was the centre of attention.
Ms G deposed that she ([X]) was able to interact with all sorts of relatives and friends who were happy to dote on her. From Ms G’s point of view, [X] is a normal child who is developing as one would expect a child of her age to develop.
So I accept that Ms G is well motivated, decent and experienced in looking after a child of [X]’s age and I certainly do not think that she is a busy body or someone who will up the ante between the parties.
She seemed to me to be a thoroughly sensible person and this is important – a person who is sensitive to what is an undoubtedly difficult situation. Ms G concedes that she does not have any professional expertise in dealing with parents in a high conflict situation, where a child is being exchanged between them and where it is just highly likely that the child concerned may be exhibit all sorts of separation anxiety, and where rightly or wrongly, the mother herself is likely to be very anxious and quite possibly emotional; and one would imagine that given that there is no doubt that [X]’s primary and most fundamental attachment at this stage is to her mother, [X] will likely react and respond to her mother’s anxieties.
The question for me this afternoon is to decide whether I should accede to the mother’s position, which is to use the professional contact centre, or entrust Ms G with the task. In this consideration, as in all matters to do with children, I have to be satisfied that any order or decision I make is calculated to be in [X]’s best interests.
In deciding how those best interests will be served, I have to consider a long list of matters in the Family Law Act, and they are set out in section 60CC. There are two categories of matter I must consider: primary considerations and a longer list of additional considerations.
The primary considerations are two-fold. Firstly, I have to consider the benefit that [X] is likely to derive from having a meaningful relationship with both of her parents. Secondly, I have to consider the need to protect her from sustaining physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
For obvious reasons, the father places more weight on the first consideration. It is his case that [X] needs to start having a proper relationship with him and to know that she is a part of his life. If the relationship is not reinstated sooner rather than later, there may be incalculable damage done to that relationship and it will loose its potential to be fully meaningful.
The mother’s position is based on the second limb and perhaps, is more complicated to express. It is her case that she is [X]’s primary carer. I do not think there is any dispute about that. It is her case that in the past, [X] has been exposed and understands that her primary carer has been assaulted by her father. That is highly controversial between the parties.
Both in evidentiary terms and scientific terms, it is difficult to know what recollection a child at [X]’s age of violent interactions between her parents, but if she has been upset or stressed, that is not helpful to her psychological welfare.
It is the mother’s case that it will traumatic for her to consider the prospect of a person whom she believes to be irrational and highly unstable and also violent, coming into contact with this vulnerable child. She does not probably trust anyone, but she certainly is fearful that Ms G will not be up to controlling Mr Alfonso, if he takes it into his hands to decamp with the child.
It is the mother’s case that her experience of the father is that he is capable of behaving violently to members of her family, on her case, for no proper reason. Ms G told me that if she was subjected to violence from the father, she would not tolerate it. I accept that that is so. Ms G is obviously – and I mean her no disrespect – a person who will stand up for herself, I think.
She (Ms G) has also told me that if there is any suggestion of the father behaving inappropriately or decamping with the child, she will telephone the police forthwith and will make a complaint, and will stress to the police the urgency of the situation. She is prepared to do whatever is necessary to assuage the mother’s concerns.
She says that if [X] becomes distressed, she would be able to make the judgment that she needed to go back to her mother, and she would telephone the mother and make the appropriate arrangements. The mother’s case is that inevitably, there will be difficulties because of the emotional component of this case. Inevitably, she says, Ms G will be called upon to exercise judgment about [X].
As such, it may be the case that she will have one view about the child returning to her mother, and the father will have a different view; and there will be a dispute and conflict, and something will go wrong, which Ms G will not have the professional training to deal with.
Her home will not have the facilities to deal with such a situation and although, with the best intentions in the world, she wants the matter to progress, and the father wants the matter to progress, something untoward will happen and it will go wrong. My role is to assess the risk of that.
It is trite, but true, nonetheless, but risk is risk. In every aspect of human endeavour ‑ there is a risk in crossing the road; there is a risk in going swimming. People take risks every day and they are calculated risks – say people cross against the red light. My role and my function is to assess whether the risk of involving Ms G in this situation is one that is unacceptable, and as such, should not be taken.
Of course, there are also risks to the father’s relationship with [X] if there is delay. There are risks everywhere in this case and they have to be balanced one against the other until I reach the option that I think will best serve [X]’s best interests. It is not an easy task.

Ms Alfonso, as she is entitled to, initially elected not to come into the courtroom, and she was in a secure room away from the father. That is a common scenario. It is often said that safe rooms are utilised as a subterfuge. I do not know whether that is so in this case but I indicated to the mother’s lawyer that as I was considering Ms G as a supervisor, it might be useful if the mother could hear what she had to say. And perhaps naïvely – and I am frequently naïve – I hope that, perhaps, that might go some way to and perhaps, alleviating some of her concerns.
Anyway, that did not come off and the mother was highly distressed. That is my impression of her. I appreciate that people can feign distress sometimes but my impression of the relationship between the parties is that it is an extremely volatile and difficult one. How could it be otherwise? The mother has essentially made allegations that the father has been extremely violent towards her. The father says, in effect, that it is all untrue.
We have a very young child concerned. We have two parents who have quite different cultural orientations and we have a situation where the mother believes that the father would be capable, and whether it is true or not, of course, I am not in a position to say, but we have a situation where the mother says the father would be capable of severing her, that is, the mother’s relationship with the child by arranging for her to be secreted to Iran.
So it is hard to think of a situation of more volatility. I should also, of course, point out the police charges, which are being defended, so it is a situation of the utmost volatility and I am dealing with a child who is not intellectually or emotionally developed, who has no way of rationalising that situation and who can only react to it viscerally and immediately. And on top of that, Ms G will have to deal, potentially, with something going wrong.
I have thought very closely about Ms G and from what I have already said, it will be apparent that I regard her as falling into the absolute top range of lay supervisors. It is very often my experience that supervisors come forward and, sadly, they are just not going to cut the mustard because they are so aligned with one parent or they are lacking in insight or they just do not know what they are getting themselves into. Ms G is not in that category. But this, I think, is also a case that is at the higher end of complexity. At the end of the day, I have to be careful about the law of unintended consequences.
I am very sympathetic to the father’s position. I appreciate and I cannot stress it enough that, from his point of view, time is of the essence and I appreciate that, but in these cases involving the pace or speed of dealing with arrangements for a young child, it is a common phenomenon, I think, that if the progress is put at a pace which the primary caring parent cannot cope with, that is more likely than not to make the arrangement derail and to place things further back rather than further forward.
I also think, from [X]’s perspective, that constitutes a risk, in terms of her medium and long term relationship with her father. When I say medium, I mean in the next three to four months, and long term, of course, I mean, when she is older. But that is a risk that would not be one that is acceptable for me to take. The mother will be anxious. Whether her anxiety is rational, I am not in a position to say, but I do not dismiss it either as feigned or something that could be easily alleviated.
For those reasons, I have come to the view, at this stage, that I ought to take, as Mr T recommends in his advice, a more cautious approach, with all its pitfalls and difficulties, which I have outlined, and that is that a professional supervisor be utilised. During the course of discussion with counsel, I indicated some of those benefits which Ms G cannot offer.
The supervisor at the contact centre will be impartial, will be backed by a regulatory framework to deal with high conflict situations and differences of view which very often arise, will have back-up and professional training, particularly in terms of dealing with an anxious child, and with a possible highly charged emotional situation. At this stage, as I say, I think it is necessary for me to take a cautious approach.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 9 July 2010