Crook and Major

[2016] FCCA 3181

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROOK & MAJOR [2016] FCCA 3181

Catchwords:
FAMILY LAW – Interim parenting – father lives in (country omitted) – allegations with respect to family violence, mental health and alienation.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 68L(2)

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Applicant: MR CROOK

Respondent: MS MAJOR

File Number: ADC 4474 of 2015

Judgment of: Judge Harland

Hearing date: 25 November 2016

Date of Last Submission: 25 November 2016

Delivered at: Dandenong

Delivered on: 25 November 2016

REPRESENTATION

Solicitors for the Applicant: Victoria Legal Aid

Respondent: In person

ORDERS

1. The proceeding is adjourned for Interim Contested Hearing on 23 February 2017 at 11.00am before Judge Baumann at the Dandenong Registry of the Federal Circuit Court of Australia.

2. Pursuant to s.68L(2) of the Family Law Act 1975, the child X born (omitted) 2012 (“the child”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

   (a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent children’s lawyer copies of all relevant documents relied upon;

   (c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

   (d)the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.

3. The Independent Children’s Lawyer make enquiries and arrangements in consultation with the parties for both parties to be psychiatrically assessed by a psychiatrist as nominated by the Independent Children’s Lawyer.

4. The appointments pursuant to Order (3) herein occur when the Respondent is already in Melbourne where possible.

5. The father spend supervised time with the child by the mother’s husband at times to be agreed by the parties and failing agreement from 10.00am until 2.00pm on Sunday when the father is in Australia.

6. The mother make the child available for the father to have skype communication with the child at least three times a week.

7. The father be granted leave to appear by telephone at the Interim Contested Hearing.

8. The parties make, file and serve any material wished to be relied upon on or before 7 days prior to the Interim Contested Hearing.

9. The father deposit the child’s passport with the Dandenong registry of the Federal Circuit Court of Australia and the registry hold the child’s passport until further order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

ADC 4474 of 2015

MR CROOK

Applicant

And

MS MAJOR

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning a four year old child, X born (omitted) 2012 (“X”). The proceedings initially came before me by of an ex parte application by the mother for orders to place X on the watchlist. When the matter came before me yesterday I ordered the parties attend a section 11F conference with a family consultant. The father appears without legal representation and has filed two affidavits and a response as well as a notice of risk. In his response the father is seeking that the child be returned to live with him and that her name be lifted from the watchlist. The mother seeks that the child’s name remain on the watchlist, that the child live with her and spend supervised time with the father.

3. This matter falls into a difficult category where there are a lot of allegations by the parties and where the parties raise serious allegations of risk. The court is in the difficult position as it often is early in these proceedings where the court, as the Full Court in Redmond & Redmond [2014] FamCAFC 155 pointed out, cannot ignore allegations that are made whilst also not being able to make findings about contested issues of fact. It becomes an issue about balancing risk factors and also determining as best it can what is in the best interests of the child.

4. There is no doubt that both parents love X and that both parents wish to have a meaningful relationship with her.  There are many factual matters that are in dispute in this case, including:-

   ·who the primary carer has been of X;

   ·whether or not X has been living in (country omitted) with the father pursuant to an agreement that she live there in her father’s care; and

   ·whether or not the father failed to return X after the mother agreed to the father and child spending holiday time there. 

5. There are issues that cannot be determined today but it seems fairly clear that X has spent a significant period of time in (country omitted) with the father and his family. 

6. The mother raises concerns about the father’s capacity to care for X and raises concerns about his mental health as well as raising issues related to family violence. 

7. The father in turn raises concerns that the mother is alienating the child from him.  The father’s affidavits are difficult to follow and include lengthy extracts of what are purported to be text messages and it is not possible to tell where they originate from between the parties and other persons.  Some of what the father has written in the affidavits raise some concerns about the father. 

8. Some of it seems quite bizarre.  It is difficult to follow the flow of the father’s concerns.  There’s no doubt that the father feels at a disadvantage and in shock at the circumstances that he finds himself in.  On his case he says he came here with X temporarily for a visit so that she could spend time with her mother, but had always intended to return to (country omitted) where he has employment and where he has other family to support. 

9. The parties attended for an 11F report with a family consultant this morning.  It was apparent that the family consultant had read the affidavits and had not read all of the annexed materials to the father’s affidavits and then had some difficulty following it.  And given the limited nature of these assessments and the limited time to consider it, I am not surprised and I am not critical.  The father has prepared his material fairly quickly and without the assistance of a legal representative. 

10. The family consultant said that she was at a bit of a loss as to what the father’s proposals were and I think this also stems from the father himself struggling with expectations as to how quickly this matter can be determined on a final basis.  It is not a matter that can be finalised today or even finalised in the next couple of months, and from his perspective that puts him in a very difficult position, having employment and commitments in (country omitted).

11. The family consultant said that the father did not raise risk issues with her apart from expressing concerns about, in essence, the child being spoilt and receiving too many presents and too many outings.  The father says that he had been advised not to say anything negative about the mother to the family consultant.  In answer to the family consultant’s comments about his presentation being somewhat unusual and him pausing and having some difficulties with his flow of thoughts, he says that is because he was trying very hard not to say anything negative about the mother but that this did not mean that he did not have concerns about X being at risk in her care.

12. What the father raises are not issues of physical risk, they are issues of alienation which he says has happened since the moment he brought her back to Australia.  And part of his concerns about gifts and outings is connected to the mother seeking to buy X’s affections.  One part of his affidavits that I found concerning was his comments about the mother’s husband and concerns he raised about the child being at risk of sexual abuse.  This appears to stem from the sleeping arrangements in that home.  The father raised concerns that they sleep in the same bed.  The mother says that is not the case and would consent to an order that requires X to have her own bed. 

13. It is not possible to go through all of that material in the affidavits, nor is it helpful at this stage.  The mother identified to the family consultant her concerns about risks with the father.  There is a risk of flight, a risk resulting out of family violence which the family consultant observed that the father has admitted to at least some instances of family violence, and the father’s mental health.  The family consultant conducted observations with both parents.  There is no doubt that the observations, particularly in the context of an 11F report, are limited and conducted in an artificial environment. 

14. The family consultant said that she found the observation between X and her father to be highly unusual.  She says that the child didn’t react at all when her father came into the room and kept playing with another child, and that the father sat watching her silently for several minutes before asking what he should do and then engaging with her.  The father says that this was a misunderstanding on his part of what was expected of him as well as the highly artificial nature of that sort of environment. 

15. The family consultant said that the mother was also anxious but that her interactions were more natural and positive and more of a typical interaction between mother and child. I certainly accept that there are limitations as to what weight the court should put on those interactions, but really, what she is getting at is the typical reaction between parent and child even though it is in that artificial environment. 

16. X has been living with her mother since the beginning of October.  There seems no doubt that she had been spending a significant period in the father’s care prior to that.  The issue is whether or not that was by consent or not.  The family consultant recommended that the child remain on the watchlist and recommended that the father’s time should be supervised by an agreed person or at a contact centre.  She also recommended that the father be psychiatrically assessed. 

17. The mother essentially adopts those recommendations.  The father is agreeable to undertaking a psychiatric assessment provided that the mother is also psychiatrically assessed.  He raises issues with respect to the mother’s mental health as well.  I have indicated during the course of the hearing that I am minded to order that both parties be psychiatrically assessed.  I am going to order an independent children’s lawyer be appointed for X and I will make orders for the independent children’s lawyer to make inquires of psychiatrists and arrange the psychiatric assessments to take place in consultation with the parties with respect to appointments. 

18. I note that the father is in a difficult position where he, of course, has a life, commitments and work in (country omitted).  From his perspective it is impossible for him to stay without having increased expenses and without the capacity to work when the proposals are that he only have supervised time which would be for a few hours a week.  He would like to have X in an equal shared arrangement with the mother during this period and that is in spite of the risk issues that he raises.  The father’s position in my view is somewhat naïve in that regard, as is his hope that the parties would be able to mediate this and sort it out, this does not sit consistently with the level of allegations that are made back and forth.

19. As I have acknowledged, the father is at a disadvantaged position and the material he relies on is somewhat unclear.  The mother’s proposal is that either she or her husband supervises the time.  The preference, I think and certainly from the court’s perspective is that it is never good for parents to supervise each other directly when there are court proceedings on foot.  The father certainly was not objecting to the mother’s husband supervising, though I should say that he does not think that any supervision is necessary and would like his daughter to provide for supervised time as well if it is considered that is necessary in the meantime. 

20. I cannot ignore the concerns that have been raised and the concerns raised by the family consultant.  I accept that the evidence is yet to be tested and there is much that is in factual dispute in this case, and even some of the chronology is somewhat unclear.  The court has to take a cautious approach at this early stage. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 14 December 2016