ANDRE & ANTON

[2013] FCCA 338

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANDRE & ANTON [2013] FCCA 338

Catchwords:
FAMILY LAW – Parenting – interim orders – father seeks time with child after two years – time ceased following allegations of sexual abuse of child by member of father’s family and failure of father to act protectively – father raises concern mother in polygamous marriage – history of significant family violence – father reports initial physical and verbal abuse as “getting to know and learning how to live with” the mother – concerns raised by Family Consultant with respect to father’s interactions with child during interviews – Family Consultant to report further disclosures made by child during interviews – child assessed to have attachments with father – supervised time recommended and ordered – ICL appointed.

Legislation:

Family Law Act 1975, s.60CC

Re K (1994) FLC 92-461

Applicant: MR ANDRE

Respondent: MS ANTON

File Number: BRC 10690 of 2008

Judgment of: Judge Purdon-Sully

Hearing date: 7 May 2013

Date of Last Submission: 7 May 2013

Delivered at: Brisbane

Delivered on: 7 May 2013

REPRESENTATION

Solicitors for the Applicant: Self represented

Solicitors for the Respondent: Self represented

ORDERS

1. That the child, X born (omitted) 2006 (“the child”) live with the mother.

2. That the child shall spend time and communicate with the father as can be agreed between the parties, but failing agreement as follows:

   (a)For a period of up to two (2) hours each week supervised at the (omitted) Contact Centre ((omitted)) should the contact centre be available to accommodate such supervised time;

   (b)In the event that (omitted) is unable to accommodate time each week, then such time shall occur for a period of up to two (2) hours each fortnight.

3. That within seven (7) days of the date of this Order, the parties shall register with (omitted) and complete an intake interview and attend to all other requirements of (omitted) to facilitate supervised time between the child and the father.

4. That the father pay any associated costs of (omitted).

5. That the father file and serve his affidavit in reply by no later than 4.00pm on 4 June 2013.

THE COURT FURTHER ORDERS:

1. That the child X born (omitted) 2006 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Circuit Court of Australia at Brisbane.

2. That pursuant to section 62G of the Family Law Act 1975 the parties and the child X born (omitted) 2006 attend upon a Family Consultant as directed by the Senior Family Consultant of the Federal Circuit Court on a date and time to be advised for the purposes of preparation of a family report.

3. That a family report deal with the following matters:

   (a)Any views expressed by the child and any factors (such as the child maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)That the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act1975; and

   (c)Any other matters that the Family Consultant considers important to the welfare or best interests of the child.

4. That the Independent Children’s Lawyer brief the report writer with a copy of all relevant documents including any relevant subpoena material and that interviews for the family report not be organised until such time as the Independent Children’s Lawyer has briefed the report writer.

5. That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the family report.

6. That immediately upon the appointment of the Independent Children’s Lawyer, the Independent Children’s Lawyer contact the Senior Family Consultant of the Federal Circuit Court of Australia at Brisbane through email ((omitted)) requesting the name and contact details of the family report writer that has been appointed.

7. That this matter be adjourned for further mention to 9.30am on 19 August 2013 in the Federal Circuit Court of Australia at Brisbane.

IT IS NOTED:

A.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 10690 of 2008

MR ANDRE

Applicant

And

MS ANTON

Respondent

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

Introduction

1. This matter involves parenting proceedings concerning a child, X born on (omitted) 2006, the daughter of Mr Andre (also known as Mr Andre) and Ms Anton.

2. The father filed an application on 10 September 2012 seeking parenting orders in relation to his time with X, inter alia, that on a final basis the parties share equal shared parental responsibility for her and that X live with her parents on a week about basis.  He sought a number of other orders which I do not intend to detail.

3. On an interim basis he sought that his application proceed on an ex parte basis, that personal service on the Respondent mother be dispensed with and that a Commonwealth information order, known as a location order, be made, his evidence being that he did not then know the whereabouts of X and the Respondent mother and that he had not spent any time with X since 17 August 2011.

4. On 13 September 2012 an order was made by me directed to Centrelink in relation to information with respect to X and the mother to enable the Respondent mother to be served with the father’s Application.  The father was then represented by a lawyer, Ms Campbell.

5. The matter came back before me on 8 November 2012 at Southport, at which time the father was again represented by a lawyer and a further Commonwealth location order was made, this time directed to Medicare in relation to information with respect to X and the mother.

6. Subsequently, the mother was served.  I understand that Ms Anton takes issue as to whether it was necessary for a Commonwealth information order to be made, however, she was served and the matter was listed again before the Court on 4 April 2013.  At that time the father was again represented by a lawyer and the mother by Ms Walker-Munro, the duty lawyer.

7. The Respondent mother had, the day before, filed her Response documents which consisted of a response seeking orders on a final and interim basis that X live with her and that the father have supervised time with the child.

8. She supported her Response document by filing a Notice of Child Abuse, Family Violence or Risk of Family Violence, in which she raised issues to do with disclosures that had been made by X in about July of 2011 and subsequently on 14 November 2011 in relation to her allegedly being sexually abused by a male cousin aged about 11 years, at the time of the incident.

9. The mother also raised in the Form 4 Notice a history of domestic violence during her relationship with the father.

10. She supported her Response by an affidavit detailing the previous legal proceedings between the parties, the orders that had been made, subsequent police involvement, including a domestic violence order that was taken out by the police on her behalf, the circumstances that gave rise to the child abuse allegations, the investigations that were thereafter carried out and a response in support of the orders that she sought on an interim and final basis.

Some history

1. The parties were married in an (religion omitted) religious ceremony on (omitted) 2006.

2. X is the only child of their relationship.  She was born on (omitted) 2006.

3. The parties separated on a final basis in about March of 2009.  It appears - and I am taking this information from a family report that was prepared on 30 June 2010 by Ms E - they were divorced under (religion omitted) law on 28 April 2010.

4. An Application was filed in March of 2010 by the mother seeking orders for sole parental responsibility for X, that she spend some daytime time with her father and by way of an interim order the mother sought a recovery order.

5. In terms of the history, orders had been made by consent in 2008 that provided that X live with the mother and that the parties have equal shared parental responsibility.  Pursuant to those Orders the father was to spend time with X from Friday to Monday morning, although it appears the parties shared the parenting of X from the time that they were separated, notwithstanding the consent orders that were made.

6. The dispute that gave rise to the mother’s Application in 2010 arose as a consequence of the father withholding the child and the matter then came before the Court on 14 April 2010, at which time Federal Magistrate Spelleken made a recovery order for X.

7. The matter then came back before her Honour on 6 May 2010.

8. The father subsequently filed material after that date, the father having been ordered to file his material that day by Her Honour and a family report was prepared.

9. The father did file material, the family report was prepared and some recommendations were made by Ms E that X live with her mother and spend time with her father as per an incremental parenting plan to incorporate several shorter visits progressing to overnight time within a period of four months.

10. There was a recommendation that Mr Andre attend a Triple P parenting course and that the parties also attend a Moving Forward program at (omitted) and that prior to the reintroduction of any overnight visits, those court ordered interventions be attended by the parties.

11. Of some note in the context of some of the issues that arise in these proceedings today, the parties were interviewed by Ms E for the purpose of preparation of her report.  The issue of family violence was raised at that time.  Mr Andre admitted to initiating physical and verbal violence against the mother, but only in the first year.  He attributing this to, and I am referring to paragraph 14 of the report, “getting to know and learning how to live with” the mother.

12. Ms E referred to Mr Andre’s recollection of the violence as both vague and contradictory and she refers, in paragraph 14, to a number of matters that she reports him informing her in relation to his physical violence involving the mother.

13. A Domestic Violence Order was obtained in June 2009 after an incident between the parties, which the father informed Ms E was not a serious incident.  It appears as though that application was made by the police and that order was enforced for a period of two years.  There are no current orders in force between the parties.

14. Following the preparation and release of that report, parenting orders were made on a final basis.  Those orders were made by Spelleken FM on 16 December 2010.  The father was not present that day.

15. The Orders that were made were that X live with the mother, that the mother have sole parental responsibility for her and that X live with the father every Saturday from 10.00am until 3.00pm, with the father to have some phone time.  A range of standard specific issue orders were also made at that time.

16. That was the current Order in place when the father initiated his further Application to this Court, the subject application to which I have referred.

17. The father’s evidence is that he did not appear before Federal Magistrate Spelleken on 16 December, nor did a legal representative appear on his behalf and it was in December of 2010 that he received a telephone call from a friend of the mother who had advised him that the matter had been listed before Her Honour on 16 December 2010 and that orders had been made in his absence.

18. The father goes on in his Affidavit filed on 10 September 2012 - and I should pause there and say he does not provide an explanation as to why he did not attend Court on that day - but he goes on to outline in his Affidavit that he spent time with X pursuant to the Orders and that on 17 August 2011 some disclosures were made by X and as a consequence of that the father, on his evidence, received an email from the mother seeking that they enter into a formal written agreement in relation to X’s safety.  So even on his evidence at that point in time the mother had raised issues in relation to X’s safety.  Unfortunately, the email to which the father refers as being Annexure 1A1 attached to his Affidavit is not attached.

19. On his evidence he has not spent any time with X since 17 August 2011.

20. The mother, in her evidence, deposes to what she says is a long history of serious family violence during her relationship with the father.  She refers to the relationship as being tumultuous.  She outlines the legal proceedings between the parties including in October 2008 contacting a domestic violence advice line and moving to a women’s shelter to escape the violence that she was suffering at the hands of the father and that it was at that time she commenced some legal action to obtain some orders in relation to X.

21. She also refers to the events subsequent to separation, including the disclosures that were made to her by X in relation to two incidences of sexual abuse by a family member involving X – serious allegations of abuse - and her concerns that the father would not act protectively as a consequence of those concerns.

22. I am not going into the detail in relation to the parties’ evidence, just providing an overview as to how we got here today.

Family Consultant’s report

1. When the matter came before me on 4 April 2013 both parties were present with lawyers.  Orders were made for the preparation of a section 11 report.  The parties attended interviews today with Ms G.  She has provided her evidence.  I propose to obtain a transcript of that evidence.

2. Her evidence is that the father’s time should commence with X, but it needs to be supervised because of the mother’s concerns in relation to the father’s ability to act protectively.

3. The father’s case is that he is the father of the child and he would keep her safe.

4. The mother’s case is that as a consequence of the history that she outlines in her evidence, she has significant concerns about the father’s ability to do that and to take seriously the allegations that are being made against X’s cousin.  Those allegations were investigated by the police and as a result of further disclosures that were made today to Ms G, she has indicated that she will be reporting those disclosures to the Department.

5. It is her evidence that there needs to be a full family report in this matter, that an Independent Children’s Lawyer needs to be appointed to represent X’s interests, that over and above the issues to do with whether the father poses an unacceptable risk of harm to X as a consequence of a lack of preparedness to engage protectively with respect to these allegations, she also raises some concerns in relation to the interaction that she observed today between the father and X.

6. It was her evidence that the father inappropriately engaged with X in asking some questions in relation to the mother, including whether or not X would like to stay with him, and at what point she would come and live with him.

7. The father, in response, says that he was not asking those questions for any other purpose other than to prove that the mother is a liar and is living in the household of a gentleman.  He raises concerns that the mother is engaged in a polygamous marriage.  He also raises concerns that X is being brought up in a household where her mother is living with another man.

Discussion

1. These are interim proceedings today.  I am not in a position to make findings in relation to disputed facts.  There are many of them.

2. I have to place significant weight, however, on the evidence of the independent court expert who has had an opportunity to canvass the issues with the parties today, and also make some observations in relation to the interchange and interactions between X and her parents.

3. Of some relevance is that, notwithstanding X being separated from her father or not seeing her father for the last two years, on Ms G’s evidence, X evidenced attachments and in her view it was important that X be afforded an opportunity to spend time with her father.

4. However, that time needs to be supervised to ensure that the father interacts appropriately with X and does not question her.

5. In response to some questions asked by Ms Anton today, Ms G explained the importance of not questioning children and the impact upon them if they were questioned.  It was her evidence it was not age-appropriate for X to be questioned in relation to adult matters and that there can be negative consequences for her at a number of levels if that occurred.

6. She raised some concerns in relation to the history of family violence as reported by the mother and there seems to be corroborative evidence in the form of Ms E’s report and also some concessions that were made by the father during the interviews today that there has been family violence between the parties.  That is obviously very concerning.

7. It would evidence a poor attitude to parental responsibilities.  There is a concern raised by the Family Consultant that this conflict has taken place in the presence of X in the past.

8. The mother’s evidence is that previously the father would not comply with Court Orders that had been made and that there had been exchanges at changeovers where the father engaged in denigration of the mother, referring to her in an inappropriate way and that this took place in front of X.

9. Obviously if there was conflict between the parties then that would not be in X’s best interests and Ms G provided some expert evidence in relation to the significant and negative impacts for children if they are exposed to parental conflict.  That would include denigration of a parent.

10. Ms G also referred to the high level of conflict between the parties in the context of the history of family violence where previously a protection order has been obtained on behalf of the mother.

11. These of course are all matters that need to be canvassed in the context of a best interests inquiry in relation to the competing proposals that the parties present.

12. The father is seeking on a final basis an equal shared equal time parenting structure and the mother is seeking that the father’s time be supervised.

13. I am not in a position today to make definitive findings on the matters that I am required to consider under s.60CC of the Family Law Act 1975 (“the Act”) in informing my discretion as to what orders will serve the best interests of X.  The mother’s evidence is that she is simply acting protectively and wants to ensure that there is no reoccurrence of the incidences that have been reported to her.

14. There is some indication from the report writer today that the father has a concern that the mother has put X up to the disclosures that have been made.

15. The father informed me from the bar table that today was the first occasion that he became aware of the nature of the allegations.  The mother denies that.  She refers to exchanges between her and the father.  Again, I am not in a position to make findings today in relation to that dispute.

16. The father has informed the Court, again from the bar table, that he has not had an opportunity to read the mother’s Affidavit filed on 3 April 2013.  I would urge him to do so.  These are serious proceedings.  They involve serious allegations that concern the welfare of a very young child in circumstances where he is seeking a shared-care parenting arrangement where the mother is raising serious allegations in relation to his behaviour and his conduct towards her.

17. He needs to inform himself at the earliest of the allegations that have been made.  He needs to be afforded an opportunity to obtain legal advice, if he intends to do that - which he tells me that he does - and he needs to be afforded an opportunity to place some evidence in response to the mother’s allegations, as set out in her Affidavit, a very detailed Affidavit filed on 3 April 2013.

1. I am satisfied, however, in considering the matters I am required to consider under s.60CC of the Act, albeit not in any fulsome way because of the state of the evidence, I am satisfied that I should put in place arrangements whereby X is afforded an opportunity to spend some regular weekly time with her father, but in an environment that is conducive to promoting a relationship with him and furthering her evidenced attachments with him.

2. A contact centre will provide an opportunity to enable that to happen whilst ensuring that the father engages appropriately with X and does not question her.  It will also ensure that the parties do not come into contact with each other to avoid the possibility or the exposure of X to any conflict between her parents.

3. I am also satisfied on the evidence of Ms G that I should appoint an Independent Children’s Lawyer to represent X’s interests.  I am satisfied that the evidence accords with the factors outlined in Re K (1994) FLC 92-461. I refer to the evidence in relation to an intractable conflict between the parents and allegations of child abuse involving a family member.

4. There also appears to be some cultural and religious issues at play here, particularly in relation to the father’s concerns with respect to the mother’s current living arrangements and whether or not that is religiously appropriate or not, denied by the mother.

5. There is also the issue raised by Ms G today in relation to the father’s exchanges with the child.  The father is seeking an equal time arrangement.  That form of parenting structure works best where parents are able to exchange a significant amount of information and do that in an environment of respect and without conflict, where the parents have a workable co-parenting relationship evidenced by good communication, trust and mutual goodwill.

6. There are concerns, on the evidence of both parties, that those important ingredients in the context of the parenting structure that the father urges upon the Court on a final basis do not exist here.

7. For all of those reasons I am satisfied that an Independent Children’s Lawyer should be appointed.

8. A family report will need to be prepared.  The report by Ms G today, although helpful, is obviously a short report and there will need to be a more detailed analysis and assessment of the issues that the parties raise, together with the issues that she identified today for the consideration of the Court.

9. In that regard, given that Ms E has previously prepared a report in 2010 for the assistance of the Court and therefore has some understanding and knowledge of the background, it is my view that she should also be invited to prepare an updated report for the assistance of the Court.

10. I note in relation to the Order that I made on 4 April that she was to prepare the short report.  For some reason that did not happen.  It may well have been for a variety of reasons, but certainly in relation to the more detailed report it may be helpful if she is available to do that.

Orders

1. So for those reasons I propose to make the orders for supervised time.

2. I previously made an order that the parties engage at a contact centre.  The mother has done that at (omitted) at (omitted).  The father is yet to do that, so I shall make an order that within seven days of today’s date he attend upon that centre and complete an intake interview.  Of course, it will be necessary for him to do that before time can commence.

3. I shall make an order that X live with the mother and spend supervised time with the father on a weekly basis at (omitted) for the maximum period allowed by that centre with the costs to be paid by the father.

4. I have appointed the Independent Children’s Lawyer.  We shall try and see if Ms E is able to prepare the updated report.

5. I am going to order Mr Andre to file a Response to the mother’s material – that is her Affidavit filed on 3 April 2013, because the father will need to place some evidence before me in response to that.  I am going to give the father 28 days to file and serve his Response.

6. I am not making an order for equal shared parental responsibility for X.  I am not in a position to make the sort of findings that I would need to make to satisfy myself that that is an appropriate order at this interim stage.

7. The orders that I am intending to make are those that I have indicated, that X live with the mother, spend supervised time with the father and the other orders that I have outlined.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully

Date:       22 May 2013