Arrabati and Jocking

[2012] FamCA 1093

FAMILY COURT OF AUSTRALIA

ARRABATI & JOCKING [2012] FamCA 1093

FAMILY LAW – PARENTING ORDERS – application for interim orders dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Arrabati

RESPONDENT: Ms Jocking

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3052 of 2008

DATE DELIVERED: 13 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 December 2012

REPRESENTATION

THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MR NEHMY

SOLICITOR FOR THE RESPONDENT: LAMPE FAMILY LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: FORSTER & ASSOCIATES LAWYERS

Orders

1. That all outstanding applications are adjourned for further consideration and mention on 5 June 2013 at 10.00am.

2. That the oral application by the father for parenting orders this day is dismissed.

3. That pursuant to s 91B of the Family Law Act 1975 (Cth), the court requests the intervention in these proceedings of the relevant officer from the Department of Human Services.

4. That pursuant to Rule 24.13 of the Family Law Rules 2004, the relevant officer of the Department of Human Services is entitled to inspect the court file and any document produced under subpoena which has been released for inspection.

IT IS DIRECTED

1. That the Court do not copy the entire file for the purposes of a s 91B order but rather, the Independent Children’s Lawyer provide to the said Department of Human Services as well as advise all other parties, the documents that the Independent Children’s Lawyer feels may assist the Department in its deliberations and each of the mother and the father have liberty to provide such documents as they consider necessary for that same purpose.

IT IS FURTHER ORDERED:

1. That all parties have liberty to apply on short notice in respect of parenting matters as well as other orders.

2. That the reasons for the dismissal be delivered as soon as practicable.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Arrabati & Jocking has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3052 of 2008

Mr Arrabati

Applicant

And

Ms Jocking

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 13 December 2012, the father made an oral application for interim parenting orders pending the conclusion of the final hearing which is already part heard. I refused his application and these are my reasons.

2. This dispute began in 2008, had a number of hearings in the Federal Magistrates Court and was ultimately transferred here. The final hearing was conducted over a number of days and was then adjourned because of a serious illness of the mother.

3. Applications by the father for interim parenting orders have previously been refused.

4. The father appeared in these proceedings unrepresented although he had been represented during the substantive part of the trial.

5. The proceedings were listed before me specifically to permit the father to make any application for interim orders because of the uncertainty around how and when this case would be finalised. For that purpose, I made specific orders for the father to file and serve material but he did not do so. Instead, he attended on the morning of this resumed hearing with his previous affidavit duly corrected of its mistakes along with a number of handwritten pages which were not much short of a stream of consciousness. Over opposition from counsel for the mother, I permitted that affidavit to be filed.

6. Another unusual aspect of this case was that the Independent Children’s Lawyer served upon the Department of Human Service, two subpoenae to attend to give evidence. Having regard to what I was told but not on oath, by Ms B of the Department, it is about to begin a serious review of the case. I was informed that the relevant protective worker who was also present in Court had interviewed the children and if so called, she would say that the children feared the father.

7. Counsel for the Independent Children’s Lawyer informed me that after speaking to Ms B, it was clear that the Department was concerned about the family and in particular about what the children were saying. If there was any prospect of a parenting order being made under which the children were to spend time with the father, the Department would be very concerned. Suffice to say, this is a case in which the possibility of state intervention is still realistic.

8. The father seemed to understand that that intervention was possible and that he might then be starting a new case in the state Children’s Court. Despite that, he sought to proceed with an oral application that he spend weekend time with the children building up to overnight and then holidays. I will not set out in detail what he sought because, for the reasons below, I could not make any order here. The mother’s response supported by the Independent Children’s Lawyer was that there should be no time.

9. I do not propose to traverse the history of this case but I am part heard after some several days of evidence in which the father was cross-examined. It would not be unreasonable to say that the mother’s case was (and presumably still is) that she was subjected to severe violence and the father sexually abused at least one of the children. Having only heard the father’s evidence, it is not appropriate, nor am I in a position to make any findings about that evidence. At the point where the father’s evidence had been heard, the mother fell seriously ill and because of the nature of the allegations, it was not appropriate on the evidence for me to simply hand the children to the father. Things seemed to remain in a state of flux until earlier in 2012 when a private arrangement was made between the father and the mother under which he spent time with the children probably without her even being present. The father alleged that despite his lengthy absence, his relationship with the children was good but their table manners and educational needs were lacking and the house in which they lived was in an appalling condition. He maintained he helped clean it all up. He pointed to his youngest child’s reading problems as he saw them. I have to confess that I read the child’s school report the exact opposite way. Whilst there was concern about the child’s school attendances and he could do more work at home, he seemed to have a “great” first semester. Even if that was not correct, the issues about education and health are longer term, not immediate contact issues.

10. The mother through her counsel acknowledged that she had opened the relationship door with the father and he had spent time with the children although she disputed the extent as claimed by the father. The father alleged drug use by the mother and that did not seem to be seriously disputed.

11. On the basis of the serious if not (at times) bizarre allegations made against the father, this reintroduction by the mother must cause serious doubts about what had occurred previously or if that is not the case, that she was not acting protectively of the children. Again, I am not in a position to make any findings at this stage and importantly, the evidence is disputed and incomplete.

12. The parties were also reinterviewed by the family consultant after the lengthy delay caused by the mother’s illness. This family consultant had been involved in the proceedings and it would seem on what he saw, his position did not alter. He did not favour contact depending upon the findings on the evidence.

13. The father submitted that I should make orders. He pointed to a number of things. First, there had been what he described as an investigation and a finding that there had been no sexual abuse. He was referring to police and Departmental investigations. Secondly, he said that the mother had no concerns about his attendance and indeed welcomed him. He said the mother left the children with him and had a relationship with a boyfriend. Thirdly, he pointed to the great relationship he had with the children and in particular, his younger daughter who he said, told him that all that had been said about him was “lies”. Fourthly, he pointed to his supportive and loving family all of whom the children should be spending time with. Fifthly, the Independent Children’s Lawyer had misled the Court about what had happened at a contact centre and was not focused on the needs of the children. Sixthly, in relation to a police matter to which I shall turn below, there was no offence committed and the police had done nothing about it.

14. I have difficulty with all of the matters submitted by the father because of the state of the evidence. I could not make any findings.

15. In response and after some probing questions by me, counsel for the mother quite properly conceded that there were some matters about which his client had to provide answers.

16. This matter must however be determined having regard to two matters.

17. First, the Department of Human Services is now investigating allegations against the father but because of his assertions, it will also mean that they examine the strengths and weaknesses of the mother as a parent. The preliminary interview indicated to the worker that the children feared their father. The father just dismissed that but I cannot.

18. What is critical to my determination is that the Department intends to do a complete review with forensic support potentially from psychiatrists and psychologists who have expertise in psycho-sexual matters. That will no doubt take some time but it has been given priority and resources. It would not be appropriate for me to simply ignore that. To dismiss that as irrelevant on the basis of the father’s statement that all this has been investigated and that a view has been adopted that there was no problem in this family, would be inappropriate. Indeed, the father asserted that such was the level of investigation in the past that he had been apologised to and had been told that this was an example of how “women use the state’s resources as pawns”. Having regard to the way the case had been conducted to the point where it stopped, I could not accept any of that.

19. The mother has given the Department an undertaking that she will not bring the children into contact with their father. A breach of that undertaking would presumably mean that the Department would intervene and commence Children’s Court action.

20. To compound matters further, even the father in his submissions emotively described his daughter C as having been troublesome. This is the child who is the subject of assault allegations against the father. I could not put her in the position where she is to face the father who sees her as a problem. Equally importantly, I could not determine on this evidence, the impact of a separation of siblings even for short terms purposes.

21. The second issue arises to a large degree out of the first. In June 2012, during the period when the mother allowed the father back into her life, an incident occurred giving rise to C being interviewed by police and statements being made. The father agreed he had been interviewed about a breach of a family violence order. Counsel for the Independent Children’s Lawyer said that her best information was that the police involved had prepared a brief but whether it would be authorised was, as yet, unknown. Having regard to the statements of the father denying that the incident occurred in the way alleged by C, there is clearly a problem at least between father and daughter. It would appear that C has alleged she was assaulted. I understand the mother supports that view but the father says she was not even there. If charged, the father will have to consider whether he puts the children in the position of witnesses for the Crown disputing the facts alleged. It would not be appropriate to allow the children to have unsupervised time with the father in those circumstances.

22. Supervised time in this case is also not an option. The father did not present any evidence from an objective person and the mother specifically resisted being involved. There is no suggestion that any contact centre would be willing to undertake the task of supervision.

23. Thus, in respect of my second concern, it would not be appropriate to make a parenting order for time between the father and the children if there was any risk of the criminal law processes being thwarted.

24. I pointed out that if all of these investigations come to nought, the father can make another application.

25. Part VII of the Act governs the determination of any parenting decision. I have previously set out the relevant legislative issues to be dealt with. I will not repeat them. Suffice to say, I have again considered the matters in s 60CC.

26. The ultimate question is what is best for these children. It is not appropriate that the Court determine an interim case on the basis of the least worst option. I do not intend to do that. If the Department is of the view that there are serious parenting capacity issues here, the application can be made in another jurisdiction. At this point however, the Department’s concern arises from the statement of the children about their fear. The father presented no evidence that would enable me to say that that fear had been ameliorated; he simply denied it was true.

27. I find on the evidence presented to me in the affidavits of the two parents, I could not rule out that any contact would create an unacceptable risk to these children of both physical and psychological harm.

28. Accordingly, the father’s application must fail.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 December 2012.

Associate: 

Date:  14 December 2012