Denfert and Avron

[2008] FamCA 1071

FAMILY COURT OF AUSTRALIA

DENFERT & AVRON [2008] FamCA 1071

FAMILY LAW  -  CHILDREN  -  Magellan  -  interim  -  supervised time  -  directions

Family Law Act 1975 (Cth)

FATHER: Mr Denfert

MOTHER: Ms Avron

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7099 of 2008

DATE DELIVERED: 21 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 21 November, 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms A.E. Carter

SOLICITOR FOR THE HUSBAND: Alavilla Vessali

COUNSEL FOR THE WIFE: Mr N.M. Eidelson

SOLICITOR FOR THE WIFE: Reale Lawyers

COUNSEL FOR THE ICL : Ms. Pandeli

INDEPENDENT CHILDREN’S LAWYER Maria Barbayannis & Co

Orders

1. That within 72 hours hereof the wife submit an application to GordonCare to use the changeover service offered by it and comply with all other intake requirements of GordonCare.

2. That if the wife fails to comply with paragraph (1) hereof the matter be listed before the Honourable Justice Brown as soon as practicable.

3. That the wife and husband submit applications to any other centre which provides a changeover service nominated by the independent children’s lawyer within 72 hours of a request to do so by the independent children’s lawyer and comply with all other intake requirements of such service. 

4. That on the first Saturday or Sunday on which GordonCare or other service can provide a changeover facility, the husband spend time with the child of the marriage … born … September, 1998 (“the child”) from 10:00 am. until 5:00 pm. on Saturday or Sunday (depending on which day a changeover service can be provided).

5. That thereafter, until further order, the husband spend time with the child from 10:00 am. to 5:00 pm. on either Saturday or Sunday in each weekend (depending when the contact service can provide changeover facilities).

6. That the child spend such additional time with the husband as is agreed between the parties. 

7. That the time the child spends with the husband pursuant to these orders be supervised by the husband’s wife, Mrs Denfert.

8. That until further order the husband be and is restrained from physically disciplining the child.

9. That until further order the wife ensure that the child attends school on each school day, on time, unless the child is unwell and the wife shall ensure she obtains a medical certificate in that event, and a copy of each such medical certificate shall be provided to the independent children’s lawyer. 

10. That the wife forthwith authorise the principal of the child’s school to forward to the husband copies of all school reports, notices, photo order forms and like documents routinely forwarded to parents (at his expense, if any).

11. That until further order the husband not attend a school attended by the child.

12. That the independent children’s lawyer serve a sealed copy of this order on the principal of the school attended by the child.

13. That each of the parties be and are by themselves, their servants and agents hereby restrained from denigrating the other parent or discussing these proceedings in the presence or hearing of the child. 

14. That as soon as practicable the husband and wife each attend a post separation parenting course, as nominated by the independent children’s lawyer, and provide a copy of the certificate of completion to the independent children’s lawyer and the solicitor for the other party. 

15. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared, preparation to commence after the husband has spent four periods of time with the child pursuant to these orders, and the independent children’s lawyer advise the Magellan Registrar as soon as practicable after the completion of the fourth period.

16. That the Family Report be released, if practicable, by 23 February, 2009. 

17. That the further hearing of all extant applications be adjourned to 10:00 am. on 27 February, 2009, subject to any other directions made by the Magellan Registrar. 

18. That pursuant to s.62B and s.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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

19. That the reasons for judgment this day be transcribed and copies made available to the parties.

20. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7099 of 2008

MR DENFERT

Father

And

MS AVRON

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties married in March 1997 and separated in January 2001, quite some time ago.  They have a daughter, who is 10.  There is considerable dispute on the material as to the time she has spent with her father.  As I understand the mother's position, as advanced by her counsel today, she does not concede regular time between father and daughter from 2005.  The father's position is very different.  In any event, it is quite clear he was seeing the child until July 2008, even if the exact nature of their contact is in dispute.

2. After separation the parties made arrangements without recourse to a court.  An incident in early August this year gave rise to proceedings in this court and in the Moorabbin Magistrates' Court.  Each of the parties puts forward a version of what occurred on that day in August when the father attended to collect the child.  The mother sought an ex-parte interim intervention order, which was granted, and which names her and the child as aggrieved family members.  There was no contested hearing.  A contested hearing of the application for a final order is listed, as I understand it, on 15 December.

3. After the incident, the father brought an urgent application in this court.  Filed on 5 August, it sought that the child live with him and the mother return the child to him so that the child could attend his forthcoming wedding, in Queensland.

4. In the material filed with his application, the father raised allegations of drug use and mental health problems and criticised the mother’s parenting.  He alleged that the child is exposed to many nude photos of her mother in the home and to inappropriate sexual matters.  According to him, the mother works in the sex industry.  He alleged that the mother changed the child’s school without any advice to him and that the child’s school attendance record is woeful.

5. The mother filed a response on 2 September, seeking that the child live with her and the father spend such time with her as the court deemed appropriate.  She filed a notice of child abuse;  no particulars of dates were provided, but she asserted in that notice that the father had been physically abusive of the child, (slapped her, pulled her arms, dislocated her right arm and punched her) and had masturbated while sharing a bed with the child.

6. The mother deposed to the circumstances in which she met the father,  to violence she alleges he directed against her and the child;  to their joint involvement through a bible group;  and to the harsh discipline he allegedly used on the child when she was very young.  She alleged that since they separated in 2001, his violence and aggressive behaviours have continued;  it is alleged that this is the reason for her many moves and the reason she has not told him where she is living. 

7. The mother further alleged that the father has a number of visitors;  has shared his bed with the child;  and was a member of a congregation that participates in polygamy.  According to her, his current wife, who he married earlier this year, was a “child bride” aged 16 and that he intends to turn the child into a “child bride”.

8. On 7 August, the father’s application was listed before Senior Registrar FitzGibbon.  The mother had been served but failed to attend.  It transpired she was at the Moorabbin Magistrates' Court, making an ex-parte application for an intervention order against the father.  The senior registrar made orders which would allow the father to take the child to Queensland between 7 and 15 August, so she could attend his wedding, provided he made a copy of an itinerary available to the mother.  Otherwise, he adjourned the matter to 21 August.  On 21 August both of the parties appeared in person and the case was adjourned to 2 September.  The mother was ordered to file material, which she did on 2 September.

9. On 8 September the matter was back before the senior registrar.  He ordered that, until further order, the child live with the mother and that the father have supervised time with her on alternate Sundays or Saturdays for an hour, supervised by Mr G, a friend of the mother's.  An independent children's lawyer was appointed.  The mother was to be able to take the child to a specialist for a referral in relation to her arm, and the case was adjourned to 29 September. 

10. On that day Registrar Mestrovic put the matter in the Magellan list.  A DHS report was requested.  All orders providing for the father to spend time with the child were suspended, as by that time Mr G had filed an affidavit in which he deposed to the one day on which contact was arranged pursuant to the orders of 8 September.  According to him, the child arrived with a note which she said she wanted him to give to her father.  He did not look at the note;  it seems he was content to hand it over without question.  As he delivered the note, the child ran away.  A number of statements in that affidavit cause me concern but this is not the time to consider them.

11. A DHS report was prepared, dated 21 October.  It indicates prior departmental involvement on three occasions since 2005.  Most of the allegations made to DHS in the past concerned the mother's substance abuse, the child’s lack of school attendance and the child’s exposure to inappropriate sexual material.  It could not be said DHS had extensive involvement on any of those occasions.

12. I note the mother has left the court.  I propose to continue.

13. In August this year DHS became involved again;  I have already referred to the form 4.  The child was interviewed by SOCAU on 29 September.  She made no disclosures of sexual abuse.  She did make what has been referred to as a disclosure of inappropriate physical discipline by her father which, he appears to have conceded, was inappropriate.

14. The police investigation is continuing.  Although it seems (from the DHS report) that DHS was advised that no charges would be laid against the father, police have since advised counsel for the mother and the independent children's lawyer that no decision has been taken.  I proceed on that basis.

15. Both parents have denied most of the allegations levelled against them.  The father has conceded the inappropriate use of physical discipline and an occasion of masturbation.

16. The DHS recommendation is that the child not be exposed to inappropriate sexual behaviour, that she keep attending school on a regular basis, that she not be inappropriately physically disciplined and that she not be exposed to conflict between her father and mother.  Those are all admirable recommendations but not ones the court can necessarily implement.

17. The mother's position is that the father should only see the child at a contact centre, until a family report is prepared.  On 8 September an order was made for both parties to do everything necessary to use the supervision facilities at Gordon Care.  The father complied soon after;  the mother has still not done so.  It is ironic that it is she who now submits a contact centre is appropriate. 

18. Counsel for the father has referred to the paradox inherent in the mother's evidence.  On the one hand, she deposed to significant, longstanding violence directed at her and at the child;  on the other, she has allowed unsupervised contact over lengthy periods.  It was not until July of this year that an application for an intervention order was made by her.

19. However, the court must be mindful of the fact that women exposed to significant violence over many years can feel unable to take steps to protect themselves and their children.  Financial, emotional and practical circumstances can militate against it, as can fear of the consequences if they do assert themselves. 

20. The evidence about the child’s school attendance is of concern.  School attendance is not only important for scholastic reasons;  it is important for children's emotional and social development.  Children who are deprived of that opportunity and who move school frequently can experience significant emotional and behavioural problems, as well as detriment to their educational progress.

21. The father seeks that his time with the child be reinstated, supervised by his current wife.  The mother has no confidence in her.  It is clear from the material that the parties are at loggerheads.  These proceedings commenced in the context of the father’s remarriage. 

22. The independent children's lawyer supports the application that the father’s time be reinstated and supervised by the father's new wife.  The ICL has had some discussions with her and feels comfortable about her capacity to supervise.  I do not place responsibility for the decision on the ICL, but she has had those discussions and it is a matter I take into account.

23. The court has to balance two competing and sometimes contradictory propositions.  The first is the importance of protecting children from physical and psychological abuse; the second is the importance of maintaining meaningful relationships between parents and children.  The court cannot at this time determine the many competing allegations.  I do have regard to the DHS report.  I also have regard to all the matters raised by counsel.  In particular, and without attributing responsibility, I note that each party deposes to problems arising at changeovers. 

24. It is my view that contact should be reinstated, but with changeovers at a contact centre.  The father’s time will be supervised by his wife, Mrs Denfert.  I propose to order that the mother submit an application to GordonCare within 72 hours to use the changeover service offered by GordonCare and comply with all other intake requirements.  If that is not done, I grant the father leave to list the matter before me on a date to be fixed with my associate.

25. As soon as GordonCare can provide that facility, contact will commence on each Saturday between 10.00 to 5.00, supervised in the terms of the undertaking given by the father's wife.

26. Other orders will be aimed at ensuring the child attends school regularly and informing the father of her progress.

I certify that the preceding
26  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.