Dennis and Rinaldi

[2018] FamCA 117

FAMILY COURT OF AUSTRALIA

DENNIS & RINALDI [2018] FamCA 117

FAMILY LAW – CHILDREN – With whom the child spends time – Where there are allegations of family violence and sexual abuse – Where the mother seeks to travel overseas with the child – Where the mother has not provided sufficient evidence to support the request to travel internationally with the child – Where the father seeks to spend time with the child – Where a number of potential supervisors are proposed by the parties – Best interests of the child

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2)(b)
Deiter & Deiter [2011] FamCAFC 82 Marvel & Marvel (No. 2) [2010] FamCAFC 101 SS & AH [2010] FamCAFC 13
APPLICANT:	Mr Dennis

RESPONDENT: Ms Rinaldi

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 3549 of 2015

DATE DELIVERED: 1 March 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 19 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Jordan & Fowler
Family Lawyers

COUNSEL FOR THE RESPONDENT: Mrs Read

SOLICITOR FOR THE RESPONDENT:	ORB Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Kent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

UPON NOTING that the father maintains a work roster of four weeks at work and two weeks at home (“the at home period”)

Orders

1. That B born … 2010 spend time with the father as follows:-

   (a)In the first at home period (following this order), on Saturday in the first week and Sunday in the second week between 2 pm and 5 pm, with the father’s time to be supervised by a supervisor nominated by the mother PROVIDED that the paternal grandmother is permitted to attend with the father;

   (b)In the second at home period on Saturday in the first week and Sunday in the second week between 2 pm and 6 pm, with the father’s time to be supervised by a supervisor nominated by the mother PROVIDED that the paternal grandmother is permitted to attend with the father;

   (c)In the third and subsequent at home periods on Saturday in the first week and Sunday in the second week between 1 pm and 6pm, with the father’s time to be supervised by the paternal grandmother.

2. That the father, child and the supervisor are to meet at the C Restaurant for the purposes of handover of the child at the commencement and conclusion of the father’s time.

3. That the mother’s Application in a Case filed 16 January 2018 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dennis & Rinaldi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3549  of 2015

Mr Dennis

Applicant

And

Ms Rinaldi

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Initiating Application filed 25 September 2015 Mr Dennis (“the father”) sought orders that B born in 2010 (“the child”) live with Ms Rinaldi (“the mother”) and spend time with him when he is in Australia.

2. In addition, the father sought orders that the child be placed on a Family Law Watch List to prevent her removal from Australia.

3. The proceedings have become complex, warranting the appointment of an Independent Children’s Lawyer (“ICL”) by order made 11 October 2016.

4. On 17 March 2017 the proceedings were transferred to the Family Court of Australia following a notation that:-

   A.That in view of the allegations of abuse that arose in Country D, international evidence may be required;

   B.Translators may be required;

   C.The parties agree this matter is complex;

   D.The estimate of hearing range from at least 5 days to 10 days;

   E.The report of Ms E which is yet to be filed recommends supervised time continue; and

   F.The mother’s request for the father to attend at the Country D Consulate to sign such documents as are necessary for the issue of her passport will be considered.

5. By Application in a Case filed 26 October 2017, the father seeks to spend unsupervised time with the child (when in Australia) as follows:-

   (a)Every Saturday from 11am until 5pm;

   (b)[C]ommencing 31 March 2018, every Saturday from 11am until Sunday at 11am;

   (c)From 12pm until 5pm on Christmas Dennis 2017; and

   (d)For one half of the short school holidays.

6. The application contemplates that if the Court is not minded to make orders that the father’s time shall be unsupervised, then he proposes that Ms F Dennis (“the paternal grandmother”) or Ms G Dennis (“the paternal aunt”) supervise his time.

7. The father’s application is opposed. The mother is prepared to agree to the father spending time with the child provided it is of short duration and supervised by a person of her choosing.

8. By Application in a Case filed 16 January 2018, the mother seeks an order that the child be removed from the Family Law Watch List and that she be permitted to travel with the child to Country D for a period not exceeding 35 days to be taken between July and August 2018.

9. The father opposes the orders.

BRIEF BACKGROUND

1. The parties met in 2008 and lived together in Country D for some few years. The child was born in 2010 in New Zealand.

2. The parties appear to have had a tempestuous and highly conflicted relationship. The mother alleges that the father was aggressive and violent towards her and that their lives together were marred by family violence. Whilst the father concedes that at times the verbal interaction between the parties was both aggressive and offensive, he denies that he was the perpetrator and promotes that a consideration of the communication that passed between the parties does neither of them much credit.

3. The father’s work is primarily overseas. The father lived in Country D and worked in the Middle East from August 2010 to April 2014, spending 7 weeks in Australia from April 2013 for medical treatment.

4. His roster has generally been four weeks on and two weeks off.

5. Whilst away, the father concedes that the mother had the primary care of the child, however, on his return he took an active and involved role with the care of the child.

6. In 2014 the parties decided to move to Australia. The father left his job in the Middle East in April 2014 and moved to Australia, where he awaited the arrival of the mother and the child. The mother and the child arrived in Australia in March 2015. The parties were together, albeit unhappily, until 24 June 2015.

7. The mother disputes that history. She denies that the parties were together at any stage in 2015 and it is her assertion that she and the child only came to Australia to obtain a divorce from the father following an advice from the Country D Police in February 2015 that the father was suspected of having sexually assaulted the child. The father is subject to an Intervention Order and up until relevant court orders; he was not able to spend time with the child.

8. The parties remain in dispute as to the mother’s dual assertion that the father was the perpetrator of extreme family violence and that he poses an unacceptable risk to the child by reason of having sexually assaulted her.

9. The father denies the allegations and promotes the position that the allegation of sexual assault is fabricated and that documents purportedly supporting the investigation by the Country D authorities are either forgeries prepared by the mother or are concocted by reason of associates of the mother being prepared to invent the allegations.

10. On 21 December 2015 orders were made that permitted the mother to remove the child from the Commonwealth of Australia for a period of 35 days subject to a substantial security sum being offered.

11. The father’s time with the child has been extremely limited. He has seen the child on only a few occasions since the proceedings commenced. Scheduled visits at the Children’s Contact Centre did not proceed.

12. Orders that the father spend time with the child have also been disrupted by the father not being able to attend, or reasons being given as to why the time should be supervised.

13. In particular, on 8 December 2017 orders were made for the child to spend two occasions with the father supervised by Ms H. One such occasion occurred on 24 December 2017, but the subsequent occasion did not occur.

14. The proceedings were adjourned to await the outcome of an update family report.  The family consultant, Ms E published her report on 29 January 2018.

15. The proceedings were adjourned to 19 February 2018 to enable the father to call the paternal grandmother and aunt to give evidence and for the mother to file an affidavit in response to the Affidavit of Ms H filed 12 February 2018 containing her observations of the supervised visit on 24 December 2017.

INTERIM PARENTING CONSIDERATIONS

1. In Marvel & Marvel (No. 2) [2010] FamCAFC 101, the Full Court provided helpful assistance in support of a cautious approach being undertaken in interim proceedings:-

   [120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).

2. In SS & AH [2010] FamCAFC 13 the Full Court said at [88]:-

   … In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding be born out after a full testing of the evidence.

3. In Deiter & Deiter [2011] FamCAFC 82 the Full Court considered an interim contested hearing where matters of risk to the child are raised. The following appears:-

   [61]… Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

4. In considering any interim parenting application I have regard to s 60B of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects and principles underlying Part VII of the Act and s 60CA which requires the Court to regard the best interests of the child as the paramount consideration.

5. I pay careful attention to the primary and additional considerations in s 60CC and in particular I give weight to the need to protect the child from physical or psychological harm as is required pursuant to s 60CC(2)(b).

6. The allegations made by each of the parties are extreme. If the mother’s allegations are made out then the Court may well find that the father presents as an unacceptable risk. If the father’s contentions are established then the outcome may be a finding that the mother has set out on a campaign to fundamentally disrupt the relationship between the father and the child.

7. There is however a concession by the mother that at present there is an advantage to the child in maintaining a relationship with the father. She proposes that the father spend time with the child limited to a few hours and supervised by persons approved by her.

8. Whilst the father contends that he does not pose a risk, there was a general concession in the manner in which the father’s counsel presented the argument that the allegations needed to be the subject of evidence before they could either underpin a finding that the father presents as a risk to the child, or could be put aside.

9. I do not ignore the separate allegations that each of the parties make about the other – that during the course of the relationship they each were the perpetrators of family violence.

10. Certainly their ongoing email and text communication does neither of them much credit. Their language is abusive and demeaning.

11. If the content of their communication manifests itself in their physical presentation to the child, then it could not be said that they are child focussed nor that they put the needs of the child above the conflict.

FAMILY REPORT

1. In the context of the family report, each of the parties were consistent with their negative view of the other party. The father conveyed his belief that the mother had set out to alienate and disrupt his relationship with the child. The mother considered that the father was intent on harassing her and that his refusal to consent to orders that would enable the child to be taken from the Commonwealth of Australia to Country D is evidence of his controlling behaviour. 

2. At the time of the assessment the child was aged seven years and nine months. She said that the father “makes her feel “sacred”[sic] because he “hurts Mum”.” However, the family consultant noted that the child had never witnessed the father physically assault the mother. The child repeated the mother’s allegation that she had slept on occasion in the same bed as the father and that he was naked. The child referred to the father as “disgusting” and provided the family consultant with a drawing of her sleeping in between the parties at age four years.

3. The child had an understanding of the principal allegations raised by the mother in respect of the father, in particular that the paternal aunt had allegedly stabbed the mother in the stomach.

4. There is little doubt that whatever represents the underlying truth of the allegations that each party directs towards the other, the child is very much affected by the conflict and the family consultant found her to be sensitive to the mother’s stress.

5. The family consultant was not able to determine the veracity of the mother’s allegations that the father perpetrated family violence and has engaged in sexual abuse of the child whilst in Country D.

6. While she considered that there were some factors which might lend credibility to the mother’s allegations, nonetheless there is the possibility that the documentation provided by the father from the Country D Public Prosecutor that there are no criminal proceedings may in part support the father’s contention.

7. On an interim basis it is not possible to decide whether the allegations made by each of the parties have substance.

8. The family consultant was however supportive of supervised time.  The following appears at paragraph 131 of the report:-

   In terms of [the child’s] wishes in regard to her time with [the father] her expressed desire for the continuance of supervised time in the event of having to spend time with [the father], could be related to a variety of reasons. One of the reasons could be due to maternal influence and possibly coaching. Given [the child’s] alignment to and significant attachment with [the mother] it is possible that [the child] is echoing her mother’s wishes, in an effort to honour her loyalty to [the mother] and in an effort to ensure as best as possible, her own emotional comfort, given she lives with [the mother]. Alternatively, [the child’s] expressed wishes may be a genuine reflection of a lack of security with [the father]. …

9. The family consultant considered that there was a benefit to the child in maintaining a relationship and certainly that is warranted until the Court is able to properly assess the evidence.

10. The family consultant recommends that if the Court finds a substantial basis to the allegations against the father, the child spend supervised time with the father for two to three hours on each Saturday or Sunday when the father is in Australia, to be supervised by a person approved by the Court or agreed between the parties.

11. If the Court finds there is not a substantial basis to the allegations against the father, the family consultant recommends that the child spend supervised time with the father for four hours on every Saturday that the father is in Australia for an initial period of three months, to be supervised by a person approved by the Court.

12. The family consultant had received advice from the mother that Ms H or Ms K were appropriate supervisors. Ms H had supervised the father’s time with the child on 24 December 2017.

SUPERVISION

1. As discussed, I consider that a cautious approach should be adopted and that of necessity this requires the father’s time to be the subject of supervision.  It may be an important consideration for the father in any event in circumstances where the allegations made by the mother are serious. Supervision will at least ensure that the opportunity for any further contention in respect of allegations that might be made should the child’s time with the father be unsupervised, are minimised.

2. At the commencement of the previous hearing, the mother’s counsel advised that Ms K was no longer available and that the mother’s support for Ms H had evaporated.

3. The father relies upon the following supervisors:-

   Ms H;

   Ms G Dennis (the paternal aunt); and

   Ms F Dennis (the paternal grandmother).

4. The mother presents Mr L as a supervisor and advised the Court that Ms K is now willing to be considered for supervision.

MS H

1. At first consideration, Ms H would appear to be a suitable supervisor. By reference to her affidavit filed 9 February 2018, she promotes herself as a court mediator and the mother of three children. It is known that she had the support of the mother and had supervised the father’s time on 24 December 2017.

2. Her affidavit sets out her observations of that supervised time and it appears that it went well. I accept her evidence and the accuracy of her observations.

3. For reasons best known to Ms H, she included in her affidavit words expressed to her by the child relating to an allegation that the paternal aunt stabbed the mother with a knife.

4. Paragraph 6 of her affidavit is of assistance:-

   [The child] also said words to the effect of “my mum and dad are fighting and he was not nice to her, he has hurt her”. I then asked [the child] if she had seen her father hurt her mother and she said “no but my mum has told me”. I then reassured [the child] by telling her that she was safe and that I would be with her throughout the afternoon.

5. The mother has taken exception to the purported conversation. She challenges the accuracy of the report by Ms H and considers that she should not have learned of the matters in paragraph 5 and 6 by reference to the affidavit. Ms H did not advise the mother of the matters raised by the child.

6. In evidence, it was apparent that Ms H did not hold the mother in high regard. Why there had been a change in her attitude was not apparent either from the affidavit or the evidence, but it seems apparent that something has brought Ms H and the mother into conflict.

7. As such, whilst I am prepared to accept the accuracy of the matters raised in her affidavit as to observations of the father and the child, I consider that Ms H has entered the fray of litigation in a way that now properly excludes her from consideration to act as a supervisor.

MS G DENNIS

1. The paternal aunt relies on her affidavit filed 6 November 2017.  She is a nurse of long standing. For reasons that are explained by an allegation of the mother, the paternal aunt sets out her involvement in a motor vehicle accident in 2004 where she was convicted of Cause Death by Dangerous Driving.

2. Under cross examination, the paternal aunt revealed that she had acted as the father’s agent during periods of his absence. She had attended at the home of the mother and had taken his car from the premises and possibly had entered the mother’s home and removed furniture.

3. The paternal aunt does not hold the mother in high regard. It was difficult for her to show restraint in terms of her evidence directed against the mother.

4. The mother contends that the paternal aunt attempted to stab her during an assault.

5. Whilst I have little doubt that the child would come to no harm under the supervision of her aunt, the paternal aunt is clearly aligned with the father and the level of hostility toward the mother is overwhelming.

6. I do not consider that she would be a suitable supervisor.

MS F DENNIS

1. The paternal grandmother gave evidence in terms of her Affidavit filed 13 February 2018.

2. There is nothing in her affidavit to suggest that she would not be a suitable supervisor and I accept that she has read and understands the obligations of a supervisor at least in terms of the broad obligations necessary for supervised time to occur.

3. The paternal grandmother also has some history of conflict with the mother but to a lesser extent that the paternal aunt.

4. She was persuasive in her evidence that she could put any disagreement with the mother behind her and was obviously focussed on promoting the father’s relationship with the child. She has had little to do with the child for a number of years but feels confident that the child would soon remember her and that it may make for an enjoyable time.

5. She specifically confirmed her intention to call the mother and/or the ICL and if necessary the police if anything untoward occurred during the time that the child was with the father.

6. With some hesitation, I consider that the paternal grandmother could properly fulfil the role of supervisor.

MR L & MS K

1. The mother promotes Ms K and Mr L. I have carefully considered Mr L’s Affidavit filed 16 February 2018 and I am satisfied that he would adequately undertake the role of supervisor. He recognises that he needs to:-

   (a)be independent and impartial;

   (b)ensure the child at all times is physically and emotionally safe;

   (c)be present and observant throughout the time the child and the parents are together;

   (d)to intervene if necessary, particularly if the child appears distressed or at risk.

2. His availability is however limited and he is only available because of his understanding that the child’s time with the father will be relatively infrequent taking into account the father’s work roster.

CONCLUSION

1. The best estimate is that unless resolved, this matter will receive a trial listing towards the end of 2018 or early in 2019.

2. It is likely that the father will continue his work roster namely, four weeks on and two weeks off. The father returned to his place of employment on 20 February 2018 and will therefore return to Australia in approximately three weeks.

3. Consistent with the remarks of the family consultant obtained from her most recent report, is her opinion that the interests of this child will be served by maintaining a relationship with the father; further consideration should be reserved depending upon findings that may be made in respect of the evidence to be led.

4. The observations of Ms H of the father’s time on 24 December 2017 are an important indicator that without interference, the child is able to interact well with the father and would appear not to be scared.

5. I propose to order that either Mr L or Ms K supervise the father’s time with the child on four occasions, with the paternal grandmother being present if the father should so elect.

6. Thereafter, the father’s time with the child is to be supervised by the paternal grandmother.

7. The first two visits should be of three hours duration, with the following two visits of four hours duration and the time thereafter of five hours duration.

8. The child should spend time with the father on either the Saturday or Sunday of each weekend that he is in Australia.

OVERSEAS TRAVEL

1. The mother’s counsel conceded that the Affidavit filed 16 January 2018 in support of the Application in a Case removing the child from the Family Law Watch List and the mother then being at liberty to remove the child from the Commonwealth of Australia is wholly inadequate.

2. By reference to the affidavit, the only relevant paragraph is as follows:-

   5.     My mother is aged and unwell.

   6.I am concerned that if I do not obtain an Order to take [the child] to [Country D] to see her grandmother on this occasion, she may not see her grandmother again.

   7.I wish to also take [the child] to see her extended family in [Country D] so that we can reunite as a family with my aged mother.

3. The mother’s counsel submitted that whilst not contained in the affidavit, she would be able to provide a security sum of $20,000 noting that the sum previously provided was $50,000.

4. The earlier order enabling the mother to remove the child from the Commonwealth of Australia was ultimately an order by consent.

5. Whilst it is clearly the case that the mother returned to the jurisdiction, matters have now progressed to a more heightened state of litigation. The allegations made by each of the parties are now the subject of extensive affidavit material and they are in direct conflict with each other. The nature of the allegations made by the mother are such that she does not consider there should be any time spent between the child and the father other than in the most limited of circumstances. For his part, the father considers that the mother will do all that she can to ensure that he does not have a relationship with the child. He considers that given the mother’s circumstances and her financial resources in Country D, she may well decide that it is easier to remain in Country D rather than to return to Australia.

6. The mother does not set out anything in her affidavit which would enable the Court to decide that the obvious risk of her remaining with the child out of the jurisdiction can be ameliorated or diminished by reference to the mother’s ties in Australia.

7. Moreover, there are outstanding allegations that the mother holds property overseas of uncertain value. The mother has not filed any affidavit material which speaks of her financial circumstances either here or overseas.

8. Whilst it may be entirely possible that the mother does not present as a flight risk in terms of the removal of the child from the jurisdiction, that is a different consideration to whether the affidavit in support of the application is completely barren of any assistance.

9. By reference to the mother’s affidavit, it appears to be a recitation of the various allegations that the mother makes against the father, rather than providing evidence to support the mother’s application for the child to travel overseas.

10. During the course of the submissions, the mother was given leave to rely upon an affidavit filed 16 February 2018.

11. The following appears at paragraph 10:-

    Without my ability to prevent it the hospital enquired of [the child] what had happened as my language is not good. I have difficulty processing English and am much less than fluent in English. The hospital were not understanding me therefore they turned to [the child] who is bilingual and I was powerless to prevent this as assistance in language was immediately required and the hospital chose to employ [the child] in this regard…

12. An issue was raised by the mother as to her ability to comprehend the English language and in particular her affidavit material.

13. It appears that her affidavit was prepared by her solicitor and the affidavit may well have been read back to the mother before she affixed her signature.

14. During the course of the proceedings the mother has required (and properly so) the assistance of an interpreter skilled in Country D.

15. There may well be an issue as to the extent to which the mother is properly able to adopt the matters raised in her affidavit material in support of her application.

16. I do not consider that the mother’s application can succeed in the absence of any evidence to support the orders for the removal of the child from the Commonwealth of Australia.

17. There was a submission by the mother’s counsel that the application should be adjourned to enable a more comprehensive affidavit to be prepared. I decline that application. This matter has consumed significant Court time and the issues that are likely to be relevant to the Court’s consideration for a party to travel overseas with a child are well known.

18. I propose to dismiss the mother’s Application in a Case.

19. I make orders as appear at the commencement of these reasons.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 1 March 2018.

Associate: 

Date:  1 March 2018