Decker and Sefton

[2013] FCCA 1485

FEDERAL CIRCUIT COURT OF AUSTRALIA

DECKER & SEFTON [2013] FCCA 1485

Catchwords:
FAMILY LAW – Interim parenting.

Legislation:  
Family Law Act 1975, ss.60B, 60CC, 61DA

Applicant: MR DECKER

Respondent: MS SEFTON

File Number: MLC 6128 of 2013

Judgment of: Judge Halligan

Hearing date: 13 August 2013

Date of Last Submission: 13 August 2013

Delivered at: Melbourne

Delivered on: 13 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Sizeland

Solicitors for the Applicant: Victorian Legal Aid

Counsel for the Respondent: Ms Perisic

Solicitors for the Respondent: Perisic Lawyers

ORDERS

1. The proceedings are adjourned for mention at 9.45 am on 2 October 2013.

2. An order for an independent children’s lawyer is made in accordance with exhibit A.

3. Until the adjourned date, the children, X, born (omitted) 2005, and Y, born (omitted) 2010, shall live with the mother.

4. Until the adjourned date, the mother is restrained from physically disciplining the children or either of them and from speaking critically of the father, any members of the father’s family and any member of the (country omitted) community to or within the hearing of the children or either of them.

5. Until the adjourned date, the father shall spend supervised time with the children for two hours each alternate weekend on either Saturday or Sunday at (omitted) Family Services and the parties shall do all things necessary as soon as possible to satisfy the intake requirements of (omitted) Family Services, and if they are accepted by that service, shall comply with any service agreement entered into with the service and with all reasonable requests or directions of staff of the service.

6. Until the adjourned date, the father shall spend supervised time with the children on the Sunday of each weekend they are not spending time with the father at (omitted) Family Services from 9.30 am to 3.30 pm, such time to be supervised by Ms W and to be sent at (religion omitted) Church, (omitted)

7. For the purposes of the father’s time under the preceding order, the supervisor shall collect the children from and return the children to the mother at her residence at the commencement and conclusion of the father’s time, the supervisor shall not be accompanied by another person to collect or return the children, and the mother shall arrange for a person able to converse in (country omitted) and English to be present at changeover. 

8. Until the adjourned date, an order is made in accordance with paragraph 10 of the interim orders sought in the father’s application filed on 16 July 2013.

9. The mother shall file and serve an amended response setting out with particularity all the orders she seeks within 21 days. 

10. The Registry is requested to arrange (country omitted) interpreters to assist each of the parties on the next Court date.

11. The mother’s solicitor shall arrange to explain these orders to the mother with the assistance of an interpreter as soon as possible.

12. The solicitors for each of the parties within two days forward to the Victorian Legal Aid notice of the orders made today and copies of the documents filed in the proceedings on behalf of their respective clients.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 6128 of 2013

MR DECKER

Applicant

And

MS SEFTON

Respondent

REASONS FOR JUDGMENT

1. This is the first occasion that these parenting proceedings have come before this court.  They were initiated by the father in the Magistrates’ Court and were subsequently transferred here.  The proceedings concerns the parties’ children aged nearly eight and three and a half.  The parties and the children came to Australia as refugees late last year and they are of (country omitted) ethnic origin.  It would seem that none of them speak English, although there may be controversy about whether or not the elder of the two children may have some English. 

2. Until the parties separated in April, the parties were part of the (country omitted) community around (omitted), were members of an (religion omitted) church community in that area, and received support through that community.  Following the breakdown of the parties’ relationship and the institution of these proceedings, both parties are making allegations of family violence against the other and both parties are making allegations of physical abuse of the children against the other.  Each of them deny the allegations made by the other party.  At this early stage of the proceedings, the court is unable to determine where the truth may lie in relation to any of these controversial matters.

3. What the father seeks today, and bearing in mind that it is agreed that there an independent children’s lawyer should be appointed and that these orders would operate for a relatively limited period of time, is that the children continue to live with the mother, which is his interim position, and that he see the children on a supervised basis each Sunday from 9 am to 3.30 pm, initially proposing two supervisors, a (country omitted) community member and worker in the area and a minister at the church the parties had attended.

4. The mother has made allegations against the (country omitted) community worker, suggesting as best as I can understand it, psychological abuse of the child and it would seem an attempt to have the child either recant suggested allegations or disclosures the mother says the child made about the father and/or to make adverse disclosures about the mother.  

5. There is also a difficulty with the other proposed supervisor, in that her ability to supervise is compromised, bearing in mind the times that the father seeks.  The minister would be involved in the two church services that occur during the time that the father would seek to see the children on Sundays.

6. The father also seeks an order that the children attend the (country omitted) school each Saturday, from 9 till 1, and that he be permitted to attend the school from 9 till 9.30, and 12.30 till 1 with the school principal, the same community worker that I had previously referred to, to supervise the time. 

7. The father says that no supervision is necessary in light of his denial of the allegations against him, but his proposal, as I understand it, is made to seek to placate and to reassure the mother.  Bearing in mind the allegations that the father makes against the mother, he seeks an order restraining her from physically disciplining the children or speaking critically of the father, his parents and members of the (country omitted) community to the children, and seeks to have telephone communication with the children.  That part of the matter, at least, is agreed. 

8. For her part, the mother seeks orders that she have sole parental responsibility for the children, that they live with her and “that the father spend time with the children at such times as deemed appropriate by (omitted) family services and the parties do all acts and things to enrol with (omitted)”.  She also seeks an order that the father undergoes an anger management program and provides confirmation of that to the mother’s lawyer.  The orders do no indicate that anything is to happen if he does not do that. 

9. I have raised concerns about the way in which the order proposed by the mother for spending time is framed, empowering (omitted) family services to determine what time might be spent. I am concerned that that is an impermissible delegation that the judicial power of the Commonwealth. (omitted) family services, of course, is not appointed as a justice under the Chapter III of the Constitution. It cannot exercise the judicial power of the Commonwealth.

10. I am fully cognisant of the fact, however, that contact services are volunteers.  They are not conscripts.  They are not party to the proceedings and they do provide a valuable service which often has to be, as it were, rationed because of the demand upon their services.  But in my view, the appropriate course is for the court to determine if time is to be spent under supervision at such a service, what time is appropriate, and to make an order for that time or such lesser time or on such other dates as the service is able to facilitate if they cannot facilitate the time determined by the court to be in the children’s best interests.  In my view, that does not, in any way, involve the contact service having to be the arbiter of the amount of time.  I am also conscious, quite apart from the constitutional aspects, that there is a risk of making an order in these terms that the contact centre service staff may be diverted from their primary task to dealing with arguments between the parents as to how much time there ought to be, and that is something they should not be diverted to. 

11. It was indicated that the contact service could provide two hours a fortnight.  That was what the mother was seeking and I proceed upon that basis.

12. As I have made plain, at this early stage of the proceedings, the court cannot determine where the truth of these serious disputed facts lie.  Hard though it might be for the parties, the fact remains the court has to proceed upon the basis that the allegations each makes against the other might be true.  That, frankly, is one consideration which leads me to the appointment of an independent children’s lawyer. 

13. If all of the allegations are true, it is possible that neither of the parents is appropriate to have the care of the children, and the parties need to reflect upon that very carefully.  The court must attempt to minimise the risk of harm to these children.

14. Although the extent of the father’s involvement with the children might be in dispute, I do not understand that there is any suggestion that the children do not have, or at least did not have, a good relationship with him.  The father says it still exists. 

15. The mother says that the children are now fearful of him.  She says that she was not able to persuade the elder child to spend some time with the father that was agreed ought to be spent subject to the children’s views in the course of intervention order proceedings which are yet to be finalised in the Magistrates’ Court.  She says the older child resisted seeing the father through fear of him because of an alleged assault by the father on her.  And when the mother was unable to overcome the elder child’s reluctance and resistance, the younger child fell into line behind the older child.  So far as the younger child is concerned and arguably in relation to the elder child too, that displays a troubling lack of control of these children by the mother.  She rather perplexingly, nonetheless, proposes that even though she could not get the children to go with the father under the arrangements agreed to in the intervention order proceedings which involved a “private supervisor”, she is proposing that the children spend supervised time at (omitted). 

16. The inference from that is that she is able to persuade the children to go there, but not otherwise.  I simply do not accept that proposition as being a realistic one.

17. It was put on behalf of the mother that the children would feel safer at a service such as (omitted), rather than with time supervised by somebody else.  That, to my mind, imparts to these children a degree of sophistication, that absent expert evidence to confirm it, I am simply not prepared to accept that children of this age and likely level of maturity and comprehension would have. 

18. Even though I cannot make concluded findings of fact at this stage, I need to record fairly unequivocally my deep concern about the mother’s position and whether or not there may be more than a little truth in the father’s concern about the mother seeking to turn these children against him.  But I cannot make that as a definite finding at this stage.  It is certainly, on the evidence, one possible scenario.  But on the other hand, I cannot make a finding at this stage that the father did not assault the older child. 

19. And in these circumstances, at this early stage of the proceedings, the court must make orders designed to ensure the protection of these children lest that has happened and there may be a risk of it recurring.  For that reason, I will require supervision of the father's time.

20. As I understand it, one of the concerns that the mother had, or at least as expressed through her legal representative, about private supervision as the father proposed, was the perceived difficulty in obtaining feedback from the supervisor about how the children’s time went. 

21. There was no suggestion, as I understand it, that if the time was spent at the church on Sundays during the time of the general morning service, a congregational lunch after it and then a (country omitted) service in the early afternoon followed by afternoon refreshments with the congregation at church, that there would be any suggestion the children would be at risk there.  That, so much, the mother conceded.  But the mother is – and it may be more of her doing than anything else – estranged now from that congregation, including members of the (country omitted) community in the area, with few exceptions.  She also, it would seem, is no longer prepared to follow the (religion omitted) faith.  She has indicated a wish to return to her practice of (religion omitted) which she says was her original faith before she converted to (religion omitted).

22. There is another complicating factor, and that is the one of language.  In relation to the father’s proposals, there was only one of the three supervisors he ultimately proposed who could converse in both English and (country omitted), and this is the community worker against whom the mother has made fairly serious allegations of mistreatment of one of the children. 

23. Even if that allegation has no substance, it clearly indicates that there is no goodwill between the mother and that person.  On the other hand, I am satisfied there needs to be somebody present who is able to converse with the mother in her language at the time of changeovers.  There may be important information about the children that needs to be imparted either at the beginning or the end of time with the father.  Ultimately, the suggestion has been made that if I order “private supervision”, the mother will arrange to have a member of the (country omitted) community of her choosing who can speak both English and (country omitted) present at changeovers.  

24. Bearing in mind the best interests principle and without going through s.60CC shopping list fashion, but taking into account the relevant considerations in finding where the best interests of these children lie set out in section 60CC(2) and (3), and considering these matters against the background of the objects and principles in section 60B, I am satisfied that the determinative issues here are the reconciliation of the two primary considerations.  On the limited evidence at the moment, I am satisfied that that requires that I attempt to provide the best opportunity for these children to continue a relationship with their father and their extended family and the (country omitted) community they have previously been a part of, whilst at the same time providing security against the risk, if the mother’s allegations have substance, of any harm to these children by requiring supervision. 

25. Even if the mother’s allegations are maliciously motivated, I am nonetheless conscious that if these children are more closely aligned with the mother than the father, as may perhaps be the case, that the mother could very easily sabotage this whole process nonetheless.  That is not in the children’s best interests.

26. For that reason I propose to make an order that the children will see their father every weekend but alternating between (omitted) and the church so that on the weekends when the time can happen at (omitted) Family Services it will be for two hours, and I am cognizant of the likely limitation that that places on any extended members of the children’s paternal family being involved, but on the other weekend providing for the children to spend the day with the father and the extended community at the (religion omitted) church that they have previously attended, supervised by the supervisor proposed today, Ms W. 

27. Ms W is not a person against whom the mother has made any complaint, and she is not a minister and therefore will not be involved in conducting the services.  To the extent to which Ms W is unable to converse with the children fully because of language problems, at the church there will of course be members of the (country omitted) community who can assist, and to the extent to which information needs to be conveyed at changeovers at the beginning or the end of the father’s time, the mother’s ability to arrange a bilingual person to be present will facilitate that communication at changeovers.  I am satisfied that they are the orders at the present time that are in the children’s best interests. 

28. Lest it be thought I have overlooked it, I have considered section 61DA.  As I say, there are mutual allegations of child abuse and family violence.  If any of them are correct, under subsection 61DA(2), the rebuttable presumption does not arise, but bearing in mind I am unable to assess the truth or otherwise of these allegations, I am satisfied that this is one of what ought to be the fairly rare occasions in an interim hearing where it would not be appropriate to apply the presumption if it did arise.  In fact, I am not satisfied it would be in the children’s best interests to make any parental responsibility order at all at this preliminary stage. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Date:  25 October 2013