Beller and Beller - [2012] FMCAfam 1493

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BELLER & BELLER

[2012] FMCAfam 1493

FAMILY LAW – Interim arrangements for care of children aged ten & four – mother alleges father took children to (country omitted) secretly without her consent – father asserts the trip was a holiday and had previously been discussed – mother sought urgent orders to place children’s names on the airport watch list but before orders became effective children and father departed Australia – (country omitted) not a signatory to Hague Convention on International Child Abduction – father returned to Australia without children – mother sought injunction to prevent father leaving Australia and whilst injunction in force travelled to (country omitted) to collect children – father has spent professionally supervised time with the children – mother wishes to continue with professional supervision – father seeks to spend time with children supervised by family friend – mother alleges family violence – matters to be considered – best interests.

Family Law Act 1975, s.60CC

Applicant:

MS BELLER

Respondent:

MR BELLER

File Number:

ADC 1876 of 2012

Judgment of:

Brown FM

Hearing date:

18 December 2012

Date of Last Submission:

18 December 2012

Delivered at:

Adelaide

Delivered on:

18 December 2012

REPRESENTATION

Counsel for the Applicant:

Ms Lewis

Solicitors for the Applicant:

Ann Josephson Lawyers

Counsel for the Respondent:

Ms McCappin

Solicitors for the Respondent:

D’Angelo Kavanagh

ORDERS

This matter be listed for final hearing before Federal Magistrate Brown on 10, 11 & 12 July 2013 at 10.00am NOTING 3 days hearing time has been allocated.
The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 12 June 2013.
The respondent file and serve all affidavit evidence he/she proposes to rely on at trial on or before close of Registry filing on 26 June 2013.
On or before 26 June 2013 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children X born (omitted) 2002 and Y born (omitted) 2008 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Regulation 7 practitioner nominated by the Dispute Resolution Co-ordinator, Federal Magistrates Court of Australia, on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released to the parties on or before 20 March 2013.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant/assessor considers important to the welfare or best interests of the said children.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.
Further consideration of the matter is adjourned to 10 April 2013 at 9.30 am when it is anticipated that the Family Report will be to hand.

UNTIL FURTHER OR OTHER ORDERS THE COURT ORDERS THAT:

The father spend supervised time with the children at the (omitted) Children's Contact Centre at times and dates as nominated by the Director of such centre but not to exceed two (2) hours per fortnight.
Orders 2, 3 and 4 of the orders made 19 July 2012 do continue.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 1876 of 2012

MS BELLER

Applicant

And

MR BELLER

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally, immediately following the interim hearing concerned. As an independent children’s lawyer has been appointed and the matter is proceeding to final hearing, it is appropriate that the reasons be transcribed.
This afternoon I have to deal with the matter of Beller. The parties to the proceedings are Ms Beller and Mr Beller. They are the parents of X, who was born on (omitted) 2002 and Y, who was born on (omitted) 2008. I will refer to Ms Beller as the wife in these orally delivered reasons for judgment and to Mr Beller as the husband.
The wife commenced proceedings in this court on 18 May 2012. On that day she prepared her own application seeking that there be a recovery order made in respect of the two children concerned. As I recall, she made her application in the afternoon of 18 May, which was a Friday.
Given what she had said to the staff at the counter of the court when she had filed her application regarding its urgency, the matter was listed before me straightaway at 4.30 pm on that day.
In her submissions to the court, it was the wife’s position that she had reason to believe that the husband had the two children in his possession; had been behaving secretively; and was apparently intent on leaving this country for (country omitted) with the children. (country omitted) is not a signatory to the Hague Convention on International Child Abduction. In these circumstances the wife had not been able to personally serve the application on the husband.
On that basis, I made an ex parte order restraining the removal of the children from this country and directed that their names be placed on the watch list maintained by the Australian Federal Police at each point of departure from Australia. I was also persuaded to make an interim order that the two children live with the wife at the parties’ former home in (omitted).
The proceedings were adjourned until the next court date 21 May. On that occasion it became apparent that the children had indeed left the country. Given that (country omitted) is not a signatory to the Hague Convention; the wife had no recourse to assistance from the Australian Government to secure the return of the children to this country via a process of engagement with the civil authorities in (country omitted).
At that stage, from my perspective it was uncertain what would happen next and I had grave concerns that the children may not interact with their mother for a considerable period of time. At that stage it was the mother’s position that she had been deceived by the husband about his intention to travel with the children to (country omitted).
The next significant thing which occurred was in June of 2011. On that occasion, in particular on 21 June 2012, the wife had reason to believe that the husband had returned to the country alone without the children.
On that basis, through her counsel at the time, Ms Pyke QC, the wife made an application that the court injunct the husband from leaving Australia, as a means of seeing if such an order would result in the attendance of the husband before the court so that he could provide information about the whereabouts of the children and ultimately secure their return to Australia.
Earlier, the wife had applied to have the Australian passports on which the children had travelled and which were in the husband’s possession cancelled and fresh ones issued which she controlled. She was concerned at information she had received from the (omitted) Consulate in Adelaide that the husband had previously applied for (country omitted) identity papers for the children.
The husband was served with that order. In fact, my understanding is that he became aware of it when he was in the process of leaving this country to return again to (country omitted). I am however not completely certain about that.
Anyway, on 28 June 2012 with the apparent acquiescence of the husband, an order was made that the husband do all things necessary to return the two children to their mother, who in the circumstances elected to go to (country omitted) to retrieve them. The husband prepared a letter written in (language omitted) addressed to his mother, which was directed to securing this purpose. In the meantime the order restraining the husband’s departure from Australia was maintained.
On 1 July 2012, the wife and her mother travelled to the town of (omitted) in (country omitted), where she was able to collect the children who were in the care of the husband’s mother and sister. She returned to Australia with the children shortly afterwards. She has paid the necessary travel expenses, which from her perspective represent a very significant sum. Ultimately, she seeks reimbursement from the husband for the travel costs so incurred.
Thereafter the parties have both been in Australia. Against this background, the court has been called upon to make arrangements for the on-going parenting of the two children. The husband filed a formal response to the wife’s urgent application on 29 June 2012. He seeks orders that the parties have equal shared parental responsibility for the two children. He also seeks an order which would authorise him to take them outside of Australia for the purpose of holidaying in (country omitted) on condition he provides security in the sum of $5,000.00.
Subsequently each of the parties has amended their respective applications to seek the settlement of matrimonial property. The most significant asset appears to be the former family home situated at Property R.
Given the history of the matter to date, it is the wife’s position that she remains traumatised by what has occurred and she has no trust whatsoever in the husband. It is her case that she remains fearful that the husband may again attempt to secret the children outside of Australia.
The husband has a different slant on what occurred earlier this year. It is his position that the wife has hysterically overreacted to what occurred. It is his position that there was no deceit or deception on his part and there had been a plan for him to holiday with the children in (country omitted) for some time which the wife knew about.
I am not in a position today to determine that issue definitively. I note, however, that when the husband returned to this country he came back without the children. He says he came because he was concerned about a family illness and he wanted to be close to and available for his sick relative and in those circumstances it was convenient for the children to remain overseas.
The wife does not accept this. It is her case that it is self apparent that the husband was intent on ensuring that her relationship with the children remained interrupted because he left them behind in (country omitted). The only rationale explanation for this being that he considered that they would be beyond the reach of the Australian Authorities.
Since the wife and children returned from the (country omitted), the wife has filed more extensive affidavit material in respect of what she says was the nature of the relationship between the parties during their marriage. In summary, she alleges that the husband was a violent and controlling person who subjected her to considerable levels of violence and intimidation.
This behaviour included on separate occasions being struck in the face by the husband; being dragged across the floor by him; threatened with a knife; and punched. In particular, it is her case that the husband was pathologically jealous of her for no good reason and on one occasion threatened to cut off one of her fingers with a knife.
It is her case that these assaults were significant and capable of independent verification. In particular, she deposes that when she went to her work other staff members observed bruising to her person. The husband refutes these various allegations. It is his position that he was always respectful and honourable to his wife whom he loved.
These issues, significant within the context of the Family Law Act, given the duty of the court to protect children from the physical and psychological consequences of being exposed to family violence cannot be determined by me in the context of this interim hearing.
The hearing at the interim stage takes place in a shortened form. The only evidence usually available is in the form of affidavits. There is no time for cross examination. Accordingly the court is unable to resolve factual issues in dispute between parties. The resolution of such disputes relies on findings of credit arising from cross examination.
On 19 July 2012, injunctions were made restraining the husband from attending at the premises where the wife and children live and from attending at the children’s school or kindergarten and the premises where the wife works. These orders were made with the husband’s consent. There is no suggestion that the husband has ever broken any of those injunctions.
On 7 August 2012 the parties agreed on the next step forward in respect of resolving issues regarding the ongoing parenting of X and Y. It was agreed that they should enrol at the (omitted) Children's Contact Centre to see if they were suitable to take part in the supervised access program. The husband also wished to examine the possibility of him spending time with the children subject to some form of oversight other than professionally provided supervision.
On 20 September 2012, the parties agreed that the husband would spend supervised time with the children at the (omitted) Children's Contact Centre. It seems this Centre was able to provide the supervision required quicker than (omitted). After four visits, the Centre was to provide a report as to how the visits went. I accept that the visits could only occur fortnightly and be of two hours in duration.
The proceedings were adjourned until December 2012 when it was anticipated that the report from the children’s contact centre would be available. In the meantime, the husband has filed affidavits via his solicitor regarding the possibility that as a further stage in reinstating his relationship with the two children concerned, his time with them should be supervised by either Mr S or Ms A. They are friends known to both the husband and the wife.
The proposed supervisors are married. They are permanent residents in Australia although both I think, are of (country omitted) extraction. Mr S is studying (course omitted). Ms A is a (occupation omitted) or a (occupation omitted) worker. She has a certificate in (qualifications omitted) and has worked in that field. She was born in this country but has a (country omitted) and (country omitted) background. Both proposed supervisors have indicated that they have read printed material about supervision and are prepared to be supervisors.
From the husband’s perspective this is the next step forward. He wants to spend more extensive time with the children concerned to consolidate his relationship with the children. The wife’s position is that she does not agree. It is her position that the children remain unsettled and guarded in their relationship with their father because of their lengthy separation from her in (country omitted) earlier in the year.
I have been provided with a report from the (omitted) Children's Contact Centre. It indicates that there have been I think, four visits which have occurred between October and 1 December 2012. As I say, the visits are available only fortnightly and there is only a limited time available of two hours for the children to spend with their father. Although Contact Centres provide a valuable service, necessarily as there are many calls on their facilities, they can only offer a limited service in a somewhat institutional setting which is different in character to a private home.
These proceedings have been rigorously contested from the wife’s perspective. She urges that the court take a cautious approach. It is her case that what happened in May of this year was perhaps the most traumatic experience a parent can have, short of the death or injury of a child. Essentially, she says that for a period of a few weeks she was in the position where she feared she would never see the two children again because they would be in a location far, far away from her. By necessary implication, it is her position that she herself is still coming to terms with that traumatic experience.
It is her case that, starting from this perspective, it is incumbent upon the court to proceed in a cautious manner. She asserts that such a cautious approach is warranted for two primary reasons. Firstly, it is her case that she is the children’s undisputed primary carer and as such, the court must pay heed to how well she functions in a psychological sense.
If she is fearful and anxious about the children in their interactions with their father, it is likely to have implications as to how well she performs as the children’s main provider of care. It is her case that given what occurred earlier this year, it cannot be said to be an irrational or overreaction on her part to be anxious about the children’s interaction with their father.
Secondly, it is her position that the two children themselves have been traumatised by what occurred. It is her position that it is self-apparent that this would be the case. The children were deprived of their relationship with her for a number of weeks.
When the husband returned alone to Australia, the children were with others in (country omitted) with whom they were not overly familiar. It is her case that these children do not have a great deal of insight into what occurred to them during this period and are likely to be apprehensive, perhaps against rational considerations that it may happen again – that is they will be taken back overseas away from their mother.
The wife’s position is that she has no confidence in the two supervisors concerned. It is her case that the husband has a powerful and coercive personality and she fears that the supervisors concerned may be overborne by his behaviour.
She does not necessarily take confidence in what has been reported by the professional supervisors concerned. In the report, she points to some conversation between the husband and the children in the first visit when it is said that the husband asked Y, “You want to come with me. Do you want to come with me?” The supervisor concerned intervened and asked the husband not to discuss these types of matters.
During the second visit, it was reported that the husband was speaking quietly to the two children concerned. The supervisor could not hear what was being said, apart from the words: “travelling around, camping, island, tonight,” “What if she won’t let me go?” “You mean when she trusts you?”
It is possible that these things were not said or the context has been misinterpreted. I do not know and I am not in a position to determine the issue definitively at this stage. However, I think it is relevant that the parental context of the parties themselves is one marked by extreme suspicion.
Ms McCappin, who is the husband’s solicitor, has pointed to what she describes as a parental relationship characterised by hate. That is her word and it is, of course, an extreme word. It is, I think, the underpinning of her submissions that the wife is irrational and motivated more by feelings of vengeance for the husband than considerations of what is likely to be best for the children.

The husband refutes any suggestion that he is a violent person. It is his case that the wife has essentially made up the complaints against him to blacken his character.
It is the husband’s position that the proposed supervisors are decent people and with the names of the children on the watch list, when with the mother having control of the children’s passports, there is no realistic probability or possibility of the husband decamping with the two children concerned.
In my view, this is a very difficult matter because, on the one hand, given what has happened to date, it does not seem to me to be irrational for the mother to say, in effect: “I don’t trust the husband and I have fears that he may do the wrong thing in future.” However, on the other hand, the fact remains that it would be difficult for the husband to remove the children from this country through legitimate channels given the orders that have been made and the absence of travel documents for them.
As in all cases to do with children, I have to approach the matter from the perspective of the best interests of the children concerned. The best interests of the children are the paramount or most important consideration.
In determining how a child’s best interests are to be served, I have to consider a long list of matters in section 60CC of the Family Law Act. Prior to recent amendments to the Act, it has been said that these best interest considerations rested on two primary pillars.
Firstly, the benefit to the child of having a meaningful relationship with both of his or her parents and secondly, the need to protect a child from physical or psychological harm as a consequence of being subjected to or exposed to abuse, neglect or family violence.
As I say, it was said that these were twin pillars. However, as a consequence of the amendment contained in section 60CC(2)(a) of the Act, the court is now directed to give greater weight to considerations relevant to the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I accept that for the husband to interact with the children concerned for only two hours per fortnight is a situation which is not likely to enhance a meaningful level of relationship between the children and him.
I accept that children’s contact centres, although they do their best to make their premises child focused and friendly are by necessity, institutional settings. Regrettably, the calls on such centres are many. It is the position that throughout this state, the best any of the children’s contact centres can offer is two hours supervision per fortnight.
The wife’s position is that these two children have been upset and traumatised by what occurred to them. It is also her case that she herself is traumatised by what happened to her and her fear that the children were to be permanently deprived of a relationship with her.
At this stage, I am not in the position to dismiss those concerns. What happened in May of 2012 was exceptional. The Act dictates that I must prioritise the need to protect the children from physical or psychological harm as a result of being exposed to abuse, neglect or family violence.
There is a dispute about how the children are currently travelling psychologically. The parties agree that there needs to be some sort of independent assessment of the two children concerned. I will put in place orders that will see the court preparing such a report. Unfortunately, it will take some weeks for the report to be obtained. At best, it is likely to be available at some time in March of next year.
The wife’s case is that there is and was a power imbalance between the parties which was manifested by the husband taking the children to (country omitted). At this stage, I am not in a position to determine the wife’s allegations against the husband but nor am I in a position to dismiss them out of hand or categorise them as likely to be overblown or irrational. I do not think I can do that because of the unusual circumstances of this case. In my view, it behoves me to take a cautious approach.
It may be that the children concerned have suffered no lasting psychological harm as a result of what happened to them because they are robust, resilient children. That, however, is not the wife’s view and I think it would be imprudent of me to dismiss her views in the matter, given what has befallen her and the children up to this stage.
It is also her case that she is fearful of the husband because of how he has behaved to her in the past. Again, I am not in a position to dismiss these concerns at this interim stage.
Family violence by its nature occurs privately behind closed doors. Its victims may find it difficult to complain of such violence to those in authority because they are frightened, they are embarrassed or for any many other reasons. For those reasons, the absence of independent corroborated evidence is not of itself a ground for the court to dismiss claims of family violence, particularly at the interim stage.
These factors, I think, behove the court to take a cautious approach. In all the circumstances, I have come to the conclusion that until there has been some independent assessment of the relationship between the children of each of their parents and particularly some examination of how the children feel about their circumstances in an emotional and psychological sense, the court should proceed cautiously.
Although I cannot know how quickly the parties will adjust to what occurred in May of this year, given the magnitude of that as it plays out through the court process, I would think that it is likely that this process of adjustment will take a significant period of time. The children must be affected by this process of adjustment and they too perhaps will also need significant time to adjust.
For those reasons, although I accept it is unsatisfactory from the husband’s perspective, I can see no alternative other than to continue the professionally supervised time until such time as there has been the family report prepared.
I will also fix the matter for final hearing so that these issues, if necessary, can be determined further. I will also put in place the formal order requiring the preparation of a family report pursuant to the provisions of section 62G of the Family Law Act.
Given the potential cultural issues in this case; the allegations of family violence which are vehemently refuted; issues relating to potential overseas travel; and the high degree of conflict between the parties; it is appropriate that an independent children’s lawyer be appointed.
For all these reasons, the orders of the court will be as set out at the commencement of the reasons for judgment.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 18 December 2012