CEP and Ms
[2004] FMCAfam 413
•17 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CEP & MS | [2004] FMCAfam 413 |
| FAMILY LAW – Children – interim contact – where mother forged father’s signature so that she could remove child from Australia – assessment of risk – supervised contact ordered. |
| Applicant: | C E P |
| Respondent: | M S |
| File No: | PAM3589 of 2002 |
| Delivered on: | 17 August 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 30 July 2004 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Ms J. Webber |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the Respondent: | Ms Judge |
| Solicitors for the Respondent: | Demaine & Associates |
ORDERS PENDING FURTHER ORDER
The mother shall have contact with the child L M S born in 1997 as follows:
(a)From 1 pm to 5 pm each Sunday commencing the first Sunday after these orders; and
(b)By telephone each Wednesday between 6.30 pm and 7.30 pm with the father to initiate the telephone call to a land line number nominated by the mother.
The mother’s order for contact is conditional upon the following:
(a)The mother gives her current Australian and any other passport she has to her solicitors prior to the first occasion of contact.
(b)Prior to the first occasion of contact the mother’s solicitors gives the father’s solicitors written confirmation that the mother has complied with order 2(a).
(c)The mother’s Sunday contact shall be supervised. For the first six weeks either Dr J M and/or Mrs B M shall supervise the mother’s contact. Thereafter, the supervisors shall alternate so that on the next and each alternate occasion thereafter L S and/or J S shall supervise contact.
(d)In the event that that a supervisor who is scheduled to supervise contact is unavailable, one of the others supervise may be substituted.
For the purpose of contact the father shall deliver the child to the contact supervisor’s home half an hour prior to contact and thereafter immediately depart.
The mother shall abide the contact supervisor’s reasonable directions concerning supervision.
The father is restrained from recording or allowing any person to listen to the child’s telephone conversations with the mother.
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 Annexure A and these particulars are included in these orders.
Pursuant to section 62G of the Family Law Act 1975 a Family Report be prepared for the court by a counsellor nominated by the Director of Court Counselling of this Registry of the Court.
That the matter is listed for final hearing before me at 10.00 am on 7 March 2005 as a two day matter.
I DIRECT that the applicant pay the hearing fee or obtain a waiver by 29 January 2005.
I DIRECT that both parties file and serve all affidavits upon which they rely by 4 pm 11 January 2005.
Both parties may rely upon the affidavits filed in support of this interim hearing.
Neither party shall file any affidavits after 14 February 2005 without the prior leave of the court.
The parties have liberty to apply for further orders and directions in relation to the matter on 24 hours notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM3589 of 2002
| C E P |
Applicant
And
| M S |
Respondent
REASONS FOR JUDGMENT
This is an application by C E P for interim contact to the parties’ son
L M S. Th child was born in 1997. On 24 August 2002 the mother left Australia with the child. In order to do so she forged the respondent father’s signature to an Australian passport application. An Australian passport was issued for the child on 24 May 2002. Thus, without the father’s prior knowledge she was able to leave Australia.
M S, the child’s father, discovered the deception the next day. After exhaustive investigations, the father discovered that the mother’s final destination was Bolivia. Armed with a recovery order made in this court the father arrived in Bolivia on 29 October 2002. The mother was then arrested and the child was delivered to the father. Immediately afterwards the father and the child left Bolivia and returned to Australia. Since then, the child has resided with his father, his father’s fiance and for a period also his paternal grandmother.
The mother has not seen the child since 30 October 2002. Until she returned to Australia the father facilitated regular weekly telephone contact, carrying the costs of the child ringing his mother in Bolivia.
The mother returned to Australia on 22 September 2003. Upon her return she contacted the father hoping to secure his agreement that she have contact with the child. He did not agree to re-establish face to face contact and thus the mother started these proceedings.
The parties’ proposals
The mother proposes that she have contact on a graduated basis. Initially, she proposes day time supervised contact, extending to longer, day only un-supervised contact.
The father agrees that the mother have contact with the child, however because he is afraid she may once again try and take the child out of Australia, he says the contact should be limited and strictly supervised. The father proposes four hours contact one day each weekend, supervised by Dr or Mrs M; the child’s godparents. The godparents have a close relationship with the child and he visits their home regularly. They are aware of the parties and child’s circumstances and understand their obligations as contact supervisors.
The mother agrees that the godparents are suitable supervisors, however submits that the court would also permit Mr & Mrs S to supervise. Mr and Mrs S know both parties and the child well. The child has a comfortable relationship with the S’s and has been a regular visitor to their home. Mr and Mrs S are aware of the parties’ and child’s circumstances and understand their obligations as contact supervisors.
On an occasion in late 2003 when the child was staying with Mr and Mrs S, they allowed telephone contact between the child and his mother. When they did so they did not have the father’s prior consent. As a consequence, the father submits that Mr and Mrs S may not be as vigilant supervisors as the child’s godparents. This is a case, it is submitted, that warrants extreme caution. I agree with the father’s counsel’s submission that the matter does warrant great caution, a factor exacerbated by the child’s’ age and the risk that he may not be able to resist removal from Australia on his own.
Assessment of risk
The crucial issue in this matter is the assessment of risk. After the court gave the mother a Section 128 Commonwealth Evidence Act certificate, she disclosed the extent of her subterfuge needed in order to remove the child from Australia. Because the proceedings are interim proceedings, the father’s counsel was not given the opportunity to test the mother’s evidence. More may become apparent about the circumstances of the child’s removal and, hence a better appreciation of the risk of it, at the final hearing. However, even without the benefit of cross-examination, it is plain that at present the risk that the child may be removed from Australia is high. That is because the mother has shown that she is willing to forge documents so that she can depart secretively. It is not at all clear whether the mother is entitled to have a Chilean passport or one for the child.
For reasons that were not clear to me, the mother did not disclose her residential address in her application or affidavits. All that was revealed that she lives in a two-bedroom rented unit in Campsie with her eighteen-month-old daughter. At the court’s insistence the mother gave evidence, revealing that she resides at Canterbury. As this is the first time the address has been disclosed, the father has not yet had the opportunity to conduct any investigations he may wish to make as to the veracity of the mother’s testimony.
Conclusion
Although supervision limits the enjoyment of contact, the risks that warrant supervision in this case necessitate that outcome. The mother submits that unless she has un-supervised contact, she will not be able to demonstrate that she can have contact without fleeing with the child. Without this opportunity, it is submitted that the mother will be deprived of the chance to demonstrate her integrity in advance of the final hearing. While that may be so, the mother will still have the opportunity to spend time with the child, show that she is reliable in terms of the frequency and her obligations with contact.
At this point the circumstances warrant supervised contact only. If the mother were able to remove the child from Australia, the cost of securing his return is high and depending on where she took the child, the risk that he may not return at all is also high. It is no answer that the child is on the airport watch list or that the mother must surrender her passport to her solicitor before she exercises contact. That is because of the potential for forged documentation. The magnitude of that risk will be further explored when the matter is dealt with at a final hearing.
the child will be comfortable with any of the proposed supervisors. It appears that the mother is also comfortable with any of the proposed supervisors. The father is concerned about Mr and Mrs S, yet was sufficiently confident of them until the telephone incident that the child was often in their care. This suggests that until the telephone incident the father trusted Mr and Mrs S to ensure the child’s physical, emotional and intellectual needs were met whilst he was with them. When Mr and Mrs S permitted unauthorised telephone contact with the child’s mother they demonstrated a lapse of judgment. However, it is important that this incident is not blown out of proportion. Mr and Mrs S did not facilitate face to face contact and telephone contact took place at the same time as the father was allowing it. It does not appear that there was any attempt by Mr and Mrs S to keep the fact of the telephone contact a secret.
On balance, the evidence indicates that Mr and Mrs S are well able to assist Dr and Mrs M with contact and will ensure that the contact is supervised as intended. Dr and Mrs M offer supervised contact for about three months. The final hearing will take place seven months hence thus provision needs to be made for additional supervisors. Supervision every week is a strain for the supervisors and unless there are sufficient people able to supervise there is a risk that contact may fail. This is likely to be confusing for the child and place his relationship with his mother under even greater stress. The approach I have taken is to have Dr and Mrs M supervise contact for the first six weeks and thereafter the contact supervisors will alternate. This way the court can be more confident that contact will occur with the frequency ordered and in circumstances which properly address all of the risk issues. During contact the mother may bring her young daughter Rachael (not her real name). The sooner Rachael and the child see each the other, the sooner the half siblings can start to build their relationship.
For the purposes of contact the father will deliver the child to the contact supervisor’s home half an hour before contact is due to start. He must then vacate the premises and ensure that he is not present during the mother’s contact. Presently the parties have a poor relationship and his presence during contact will put all the participants on edge. This can only undermine the mother and child’s comfort and interaction.
Prior to the first contact occasion the mother must give her Australian and any other passports to her solicitor. Her solicitor must give written confirmation to the father’s solicitor that she holds the passport. The mother’s solicitor shall not return the passport to the mother until the parties’ agree or the court orders it.
Face to face contact will be supplemented by weekly telephone contact. The mother believes that the father has previously taped her telephone contact and regards this as an intrusion into her time with her son. It is an intrusion and for so long as the mother’s face to face contact is supervised the risk that the mother may plot with the child for him to run away with her is remote. As all other contact will be supervised the child and mother should have at least a semblance of privacy during telephone contact. Accordingly the father will be restrained from recording or allowing anybody else to listen during telephone contact.
In the short term I am satisfied that these orders are in the child’s best interests.
The matter has been listed for final hearing in March 2005. It will be essential that the court have a family report for this hearing.
For these reasons the court makes the orders identified at the start of this judgment.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 17 August 2004
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