Arrabati and Jocking

[2010] FamCA 392

FAMILY COURT OF AUSTRALIA

ARRABATI & JOCKING [2010] FamCA 392

FAMILY LAW – CHILDREN – Interim parenting orders – oral application for contact centre orders when trial part heard and significant adjournment because of illness of primary attachment parent – Significant family violence and allegations of sexual abuse asserted – Long delay in father seeing children – Application refused

Family Law Act 1975 (Cth)

APPLICANT: Mr Arrabati

RESPONDENT: Ms Jocking

INTERVENOR: Department of Human Services

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3052 of 2008

DATE DELIVERED: 21 MAY 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 20 MAY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ARNOLD

SOLICITOR FOR THE APPLICANT: BERRY FAMILY LAW

COUNSEL FOR THE RESPONDENT: MR NEHMY

SOLICITOR FOR THE RESPONDENT: LAMPE FAMILY LAWYERS

COUNSEL FOR THE INTERVENOR: MR STEVEN

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS SPEHR

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

Orders

1. That the oral application of the father made on 20 May 2010 for interim parenting orders is dismissed.

2. That the resumed hearing of all parenting matters be listed as the 2^nd case in the list commencing at 10 am on  19 July 2010 but not to be called upon before Monday 26 July 2010.

3. That the matter be listed as requiring 3 further days of hearing.

4. That the Independent Children’s Lawyer advise the relevant representatives of the Department of Human Services of the making of these orders and make available to them a copy of the reasons for judgment this day.

5. That the parties have liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Arrabati & Jocking is approved 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

And

DEPARTMENT OF HUMAN SERVICES
Intervener

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The father of the four children in this case has asked that pending the completion of the defended hearing, he have time with them in a supervised environment of a contact centre. He therefore seeks interim parenting orders.

2. The part heard final hearing was to have resumed before me yesterday 20 May 2010 to its conclusion. Unfortunately, the mother has fallen seriously ill and has been treated for cancer since the adjournment on 17 March 2010. Evidence was tendered and not disputed, that the wife was to have treatment during these anticipated hearing days and because of the gravity of the illness, the treatment could not be delayed. Additionally, the treatment has side-effects which make her significant participation improbable.

3. The dilemma is that the father has now not seen the children apart from in a family report environment for two years.

4. The application of the father was made orally. It was simply that he have contact at a contact centre for whatever period could be accommodated. As orders had previously been made anticipating the use of such a centre, counsel for the father said he did not anticipate a delay with any implemented regime because the parties had reached the top of the waiting queue.

5. The mother and the Independent Children’s Lawyer both opposed any interim parenting orders.

6. In anticipation of an application being made by the father, the mother apparently notified the Department of Human Services. The Department’s legal representative, Mr Stevens appeared as Amicus Curaie to advise the Court that although not a party and not intervening, the Department knew the file from previous involvement. The Department adopted the position that if contact was to occur, it should only be if the children wished it and the various professionals supported it and it should then be supervised. After hearing the positions of the mother and the Independent Children’s Lawyer, Mr Stevens said that the Department’s position was really the same as that of the mother.

7. The father’s position was:

   ·even on the basis of the allegations made against the father, the ultimate outcome would be that his time would be supervised;

   ·the Family Consultant’s evidence from late 2009 did not reach any conclusion but he did observe positive interaction between C and the father in circumstances where allegations of sexual impropriety relate to C;

   ·a CASA report from August 2009 recommended supervised and short times;

   ·the father had done the suggested anger management course and the Court had had an opportunity to observe him giving evidence in the witness box;

   ·there was evidence of the father being well-meaning and positive with children including a sporting program;

8. The father’s position was underpinned with the fact that there had been an inordinate delay in resolving the matter.

9. The mother’s position was:

   ·the Family Consultant said that supervised time could inhibit the progress of the children including a reversion by C to sexualised behaviour;

   ·the husband’s evidence was unsatisfactory because of his blanket denials of the violence;

   ·the husband blamed the wife for the position adopted by the children;

   ·there was an assertion by CASA that there had been a sexual assault committed;

   ·the evidence needed to be tested and the Court could infer that the children would be traumatised by witnessing what their mother was going through and they should not be put through the supervised program.

10. The Independent Children’s Lawyer supported the mother. Her counsel said that the children would be aware of what their mother was going through and it may mean they would worry about their future particularly if they were being told to see their father. It may mean that they could construe their mother’s illness and future more seriously.

11. The litigation pathway in this case has been sad, tortuous and very unfortunate and that is a factor that I must take into account. However, it is sad and unfortunate for the children that they have not had that resolution rather than for the father.

12. The unfortunate pathway arose because the Federal Magistrates Court suspended the father’s contact because of a notification to the Department which required investigation. However, that Court was anticipating not only a completion of the investigation but also a final hearing which was to be only months away.

13. When the final hearing time arrived, the matter was transferred to this Court with a recommendation of expedition.

14. The lateness of the transfer did not help the tortuous path.

15. Upon an application for an expedited hearing, I had limited material with which to make a determination that the case needed priority over other cases. The conflict was obviously between the protection of the children from harm as against the fact that they were missing out on having any relationship let alone a meaningful one with their father. For reasons given at the time, I refused the expedited hearing.

16. The delays thereafter can only be attributed to the volume of work in this Court and the lack of resources.

17. The current adjournment has not assisted the problem. Because of the nature of the dispute, the evidence needs to be tested and the initial time estimated has now expanded out. Again, resources limit the capacity of the Court to simply fix lengthy trial times.

18. The interim application however must still be determined on the basis of what is in the best interests of the children. In this case, I have the evidence of the family consultant but also the trial affidavits of the parties. The added benefit is that I have now seen the father cross-examined.

19. Of some assistance to this application is a reference to the way in which the parties conducted their cases. The father’s written proposal was that the children live with him and that the Court determine the time between the mother and children. He suggested that there needed to be a “reintroduction” with the children. The mother’s position was simply that the father’s time with the children be “reserved”.

20. For the purposes of this interim hearing, first, an examination of the mother’s case is important because one there finds the allegations that underlie the argument of unacceptable risk. Secondly, I am now in a position to understand what the father says about the mother’s case because I have heard him cross-examined.

21. As a simplistic overview, the mother’s case was:

    ·she and the children were the victims of serious family violence of which the father was the perpetrator;

    ·the children had been the victims of sexually inappropriate behaviour by the father.

22. It is clear from the father’s evidence that he denies all of the allegations just mentioned.

23. The father is a man of strong opinions. He described himself as “passionate”. He was clearly forthright but also very dismissive of the mother’s concerns. The children have made “disclosures” about their father’s behaviour to the family consultant and also the CASA worker. However, their evidence is yet to be examined in detail and tested. What I can conclude however is that two objective people have concerns about what the children have said.

24. The father’s case is that the mother has manipulated the children and that he has never been violent. I must observe that the father’s accusations against the mother are short on particulars. The mother on the other hand is precise in her particulars albeit that they have not yet been tested.

25. I am concerned that the father is simply dismissive of the children’s concerns as they have been articulated to the family consultant. I certainly could not yet make a finding that the accusations even if true were such that the outcome would be one of supervision. The evidence of the impact on the children of any time or relationship with their father remains both uncertain and to the extent that there is evidence of it, untested.

26. To a very large degree therefore, the only evidence that I have which has been at least partially tested is that of the family consultant Mr E.

27. Mr E said:

    ·that when he told the children he was going to observe them with their father, [P] and [C] expressed reticence but both co-operated;

    ·[C] played with the father and allowed him to hug and engage with her;

    ·[P] avoided his father but eventually allowed him to pick him up and hold him;

    ·[B] did not initiate interaction and played by herself;

    ·[L] separated herself from her siblings and her father;

    ·Professionals who had worked with the children agreed the children had been exposed to significant levels of parental violence and that the children were afraid during those times. Those professionals believed the behaviour of the children suggested they had not felt psychologically safe with their father;

    ·The children expressed the views that their father had been violent to their mother and he was not a person who engendered positive memories for them.

28. Mr E observed the parties and the children but he also had an opportunity to examine various documents. He felt the professionals’ views should be given weight because these people had had plenty of opportunity to observe the children.

29. Perhaps diplomatically, Mr E described the relationship between the father and the children as “problematic”. That statement does not arise from an absence in their lives; it comes from the fact that the children have consistently expressed concerns about his behaviour towards their secure attachment figure.

30. Mr E took the view that the husband needed to understand the problem and that attending a program about violence was important. But attending such a program is one thing, understanding the concepts is another.

31. Much was made in his evidence of his having undertaken courses including one relating to behavioural change and he had learned from them. However, he maintained that the parenting problem was that of the mother. As an example he said she drugged the children so that she could get a good night’s rest. He said she needed “time off” and “rest”. When a number of matters were put to the father, his response was that they were and that that was why he needed “guidance” from the Court. He felt the mother needed psychiatric help and that he needed to supervise her.

32. He asserted the mother bashed the children. He pointed to the wife holding a knife and the children having black eyes. Nothing the children said to Mr E would seem consistent with that. As for the involvement of the Department in those times, he said he did not want the children taken away so his assertions were not put to them.

33. As for the mother’s allegations of violence, bearing in mind that assertions were made that the children were present, he said that “bits” of the mother’s affidavit were true. He said he was a “bastard” in 2000 because he did not have the tools or the help to handle the situation. He said he did not beat the mother but rather was verbally abusive. However, the mother’s evidence which I again stress is untested refers to incidents where she sought medical help. The father’s explanation for the mother having fractured ribs was that he did not know how that happened. When asked was she making it up, his answer was that it could not be because she had an x ray. The consistency between medical records and assertions were explained away as being “easy to manipulate”. He proferred the explanation that the mother hurt herself and blamed him.

34. Much of the evidence of the mother about the fear of the children of their father would seem inconsistent with a film of the children interacting with the father’s family. That evidence is yet to be put into context when I hear from the mother.

35. Mr E said that the father had to assume responsibility for his actions. On any view of his evidence he has not. However, if one starts from the presumption that a person who has done nothing wrong cannot be expected to confess, it would not be surprising that the father would not take such a step. Here, the conflict lies in the fact that the father denies the violence and the children repeat that it did occur. If I find that the violence did occur and accept that the evidence of Mr E as an expert is credible, it is hard to see on the father’s evidence that he has taken the step to enable a rebuilding of his relationship with the children.

36. Ms Spehr for the Independent Children’s Lawyer submitted that in these difficult times for the mother, if a reintroduction occurred, the children may worry about the future of their mother. The mother’s illness therefore exacerbates the problem for the children in trying to begin a lost relationship where they assert that they fear for the safety of their mother from their father.

37. Thus, whilst the contact centre program can protect the children physically, the issue in this application is the psychological impact on them at this time.

38. Mr E said that if the Court was minded to order contact, the children needed to be prepared for the reintroduction. That could be done at the contact centre.

39. Mr E thought that the children were resistant. That will be an added difficulty with their mother currently being ill.

40. Essentially, it seems that the issue is the impact on the children of trying to open the relationship door. Mr E said it was important to not re-expose the children to “actual or perceived feelings of threat or anxiety or for problematic memories to be triggered for them as a result of spending time with their father”.  Nothing I have thus far heard from the father’s evidence could satisfy me that he accepts the difficulties faced by the children. His position initially was that the children should live with him. On his evidence, that was unrealistic. I stress again that I have not heard from the mother who may very well be able to say how resilient the children are and how she would create what is currently sadly lacking.

41. Thus as an overall view, the evidence could not satisfy me that it is in the children’s best interests at this moment to try a contact centre program notwithstanding that it may be months before that could be attempted. I accept at the moment that Mr E thinks that time is not necessarily the enemy.

42. In making the finding above, I have contemplated all of the matters in Part VII of the Act.

43. Clearly, notwithstanding all of the perceived injustice to the father, it is the children’s best interests which are paramount.

44. Section 60CC provides for mandatory considerations before making a final decision to make a parenting order.

45. The conflict between the need for the Court to consider the benefit to the children of having a meaningful relationship with the father as against the need to protect the children could not be more stark in this case. In my view, the latter must prevail because the final orders may require changes that reduce the time. On the other hand if the orders commence a program of contact, it may be harder but the tools to implement that may be much easier to put in place.

46. The objects of the legislation in relation to children are to ensure that the best interests of those children are met by:

    (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

47. The objects described above are supported by a series of principles which underlie them.  Those principles are that except when it would be contrary to a child’s best interests:

    (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)parents should agree about the future parenting of their children; and

    (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

48. The combination of the objects and principles are intended to guide the Court as yardsticks to be obtained for all children and their parents because in keeping those things in mind, the best interests of children are met. The emphasis however must be on the words underlined. The Court cannot change the history of the parties and if findings are ultimately made along the lines of the assertions of the mother then questions of past parental responsibility come sharply into focus. If that is the case, the father’s evidence about how he views the mother also becomes a critical issue.

49. Section 60CC(3) sets out some additional considerations.  The first of those considerations is that the Court must consider the views of the children.  That does not mean that views should simply be “rubber stamped”.  On an interim hearing such as this, those views as expressed through the family consultant and supported by the Department’s representative have a strong bearing on what I have to order.

1. Section 60CC(3) also requires the Court to consider the nature of the relationship of the children with each of their parents.  That means that I must not only consider the non-existent relationship of the father and the children but also the impact of any orders on the relationship between the mother and the children. In her current state of health, it may be a problem.

2. There is no evidence of how the orders would impact upon the children. The evidence of Mr E shows that they were compliant but the majority were not enthused about time with their father. An interim attempt on evidence would be fraught with difficulty.

3. I have said sufficient about the issue of parental responsibility and need say no more.

4. This case will be very much conducted under the family violence spotlight. The Court must take it seriously. The outcome of this case is going to depend upon how the children would have a relationship where there is no respect between parents. If family violence is proved, it may just explain many of the things the children have been saying.

5. Section 60CC(4) considerations here are not helpful.

6. Section 61DA(1) requires that when making a parenting order the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility. 

7. That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence or in an interim hearing that the presumption should not be applied because of the evidence.  I do not think it is appropriate to apply the presumption in this case because of the state of the evidence.

8. This is not a case where I could find that it was in the best interests of these children that a reintroduction through a contact centre was in their best interests.

I certify that the preceding Fifty Seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 May 2010