F and F
[2003] FMCAfam 149
•1 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & F | [2003] FMCAfam 149 |
| FAMILY LAW – Children – residence – orders – interim orders – best interests of child – variation of orders – child aged 4 years 11 months – allegations of abuse – involvement of State child welfare authorities – admissibility of hearsay evidence about a representation made by a child relevant to that child’s welfare – potential witness writes to Federal Magistrate canvassing evidence in the case – necessity to transfer proceedings to the Family Court. Evidence Act 1995, s.75 Cilento (1980) 6 Fam LR 35; FLC 90-847 |
| Applicant: | D R F |
| Respondent: | D R F |
| File No: | ADM 4769 of 2001 |
| Delivered on: | 1 May 2003 |
| Delivered at: | Newcastle |
| Hearing Date: | 24 April 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr McQuade |
| Solicitor for the Applicant: | Paul G. Doube |
| Counsel for the Respondent: | Ms Lewis |
| Solicitor for the Respondent: | Johnston Withers |
| Counsel for the Child’s Representative: | Mrs West |
| Solicitor for the Child’s Representative: | Catherine Ann Nelson |
ORDERS
UNTIL FURTHER ORDER:
The orders made on 22 March 2002 are suspended.
The child B S F born 2 May 1998 is to reside with the Respondent mother:
(a)from the conclusion of school on Tuesday until the conclusion of school on Thursday in each week during school term time;
(b)from 9.00 to 5.00 pm on Mother’s Day;
(c)from 8.00 am on Tuesday until 5.00 pm on Thursday in each week during school holidays;
(d)by telephone each Saturday; and
(e)at such other times as the parties shall agree.
The compliance by the mother with Order 2 above is to be supervised by a family and child counsellor or a welfare officer nominated by the Director of Court Counselling of the Adelaide Registry of this Court pursuant to section 65L of the Family Law Act.
For the purpose of the above Orders, the mother is to accept the supervision of a family and child counsellor or welfare officer nominated in accordance with Order 3.
The mother is to comply with all reasonable directions of officers of the Child and Family Team of the Department of Family and Youth Services in respect of the said child at all times when the child is in her care.
Both parties are restrained and an injunction is granted restraining either one of them from weighing the said child or permitting any third party except a medical practitioner from weighing the said child.
Neither party is to subject the child to any psychiatric or psychological examination or permit any third person to do so without leave of the Court.
Neither party is to use any corporal punishment on the child or permit any third person to do so.
Pursuant to s.62F(2) of the Family Law Act, the parties are to attend a conference with a family and child counsellor or welfare officer at a time, date and place nominated by the Director of Court Counselling for the purpose of discussing the care, welfare and development of the said child and trying to resolve any differences between them
The parties and the child are to attend upon Mr Tony McDonough, being a welfare officer, at a time and place directed by the Child’s Representative for the purpose of preparation of a family assessment report pursuant to s.62G of the Family Law Act and shall bear the cost of preparation of such report equally between them.
The report prepared in accordance with Order 10 above is to deal with all matters relevant to the care, welfare and development of the child including the relationship between the child and the child’s parents and other significant adults but is not to involve any psychiatric or psychological examination of the said child.
These proceedings are transferred to the Family Court of Australia at Adelaide for further hearing.
Liberty to either party or the Child’s Representative to apply in respect of any issue on seven days’ notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADM 4769 of 2001
| D R F |
Applicant
And
| D R F |
Respondent
REASONS FOR JUDGMENT
This is an application by the father of a little girl called B, who is about to turn five years of age on Friday 2nd May, to vary orders made by consent on 22nd March 2002. Those orders provided that the child should reside with the mother, who is the Respondent to these proceedings, and that the father should have regular contact from the end of school each Friday to the commencement of school on Monday each week, as well as for half of each school holiday period. The child had not attained school age when the Orders were made, but she has been attending pre-school.
What the father now seeks, both on an interim and on a final basis, is that the child should reside with him and that the mother should have supervised contact.
By her Response, filed on 2nd April 2003, the mother sought orders that the father return the child to him, that a child representative be appointed, a subpoena be issued to the Department of Human Services for certain documents in respect to the child and that the proceedings should be transferred to the Family Court. What the mother now seeks is that the original contact arrangements should be resumed, except that the parties had agreed that contact should commence after school on the Thursday rather than the Friday of each week, and that contact should conclude on the Sunday afternoon.
The Child’s Representative seeks orders to this effect:
a)an injunction restraining both parties from having the child weighed;
b)the child should continue to reside with the mother and have contact with the father over the period of the next adjournment; and
c)the parties should be ordered to attend upon a Mr Tony McDonough for the preparation of a family assessment report.
Background
The parties were married on 27th May 1997 in Canada. The father is an Australian citizen, but the mother comes from Canada. They separated on 10th September 2001. There is one child of the marriage, B, who was born on 2nd May 1998.
Proceedings in this Court between the parties about the child were resolved by means of consent orders on 22nd March 2002. Those orders provided for the child to reside with the mother during the week and with the father every weekend. By agreement between the parties, the father’s contact was varied so that it would commence on the Thursday afternoon instead of on the Friday, and conclude on the Sunday afternoon rather than on the Monday morning. This agreement was never incorporated into any order.
According to the father’s affidavit sworn on 9th March 2003, he had concerns relating to the child’s wellbeing and physical safety from about April 2002 for these reasons:
a)the child’s weight fluctuates and she has developed a habit of vomiting after meals;
b)the mother had commenced a new relationship with a man;
c)the child had made a number of remarks with a sexual connotation; and
d)the child of having been struck by the mother.
The father deposes that he contacted the Family and Youth Services Division of the Department of Human Services to voice his concerns. As a result, a social worker from FAYS, one K F, interviewed the mother. He made two complaints to FAYS in 2002.
The incident that appears to have precipitated these proceedings dates back to 26th February 2003, when the child went to the father’s home for contact. According to the father, the child complained of nausea and stomach pain and later disclosed to a family friend that her mother had hit her in the stomach. The father’s mother took the child to a medical practitioner and the father made a complaint to FAYS. K F of that department attended the father’s home on the evening of 28th February.
The father swore an affidavit on 9th March 2003, and the relevant documents to commence these proceedings were filed at this Court the following day. The father’s application was given a return date of 4th April 2003. What also appears to have happened, and I take this information from the mother’s affidavit sworn 31st March 2003 as the father’s material is silent on the subject, is that the father did not return the child to the mother after contact on Sunday 9th March 2003.
According to the mother, the father not only failed to return the child after contact on 9th March but denied any contact to her as well. The mother deposed to having had telephone contact only, and then on just two occasions, between that date and the date of her affidavit. The mother also attached a letter to her affidavit from the Director of the child’s pre-school, stating that the child had not attended pre-school from 10th March. Counsel for the father told the court that the child had re-commenced at pre-school.
On 10th March 2003, Family and Youth Services completed a Case Plan document. In this Case Plan, Ms F stated that emotional abuse of the child was confirmed but physical abuse had not been confirmed as a result of her investigation of the father’s complaint of 29 November 2002. She went on to state that she had confirmed physical abuse as a result of her investigation of 28th February 2003, and that her assessment of the risk to the child was very high.
Ms F referred the child to a psychologist for a psychological assessment of her attachment to her parents and her emotional and cognitive functioning. This assessment was conducted by Y H, a clinical psychologist. Ms Harris had commenced her interviews on 30th January 2003 and completed her last interview on 13th March. Her Psychological Report is dated 31st March 2003. Both of these documents were made available to the Court on 4th April 2003.
When the application came before the Court on 4th April, Federal Magistrate Connolly ordered that the child should be separately represented pursuant to s 68L as a matter of urgency. He apparently indicated that the child should be returned to the care of the mother, but there is no order on file to this effect. The matter was adjourned for a week, to 11th April.
When the matter came back to Court on 11th April, a Child’s Representative had already been appointed. Ms Nelson appeared in that regard. Federal Magistrate Driver ordered that the father should have contact with the child from the conclusion of school that day until
6.00 pm on Easter Monday, and then adjourned the matter to Thursday,
17th April for possible interim hearing.
The matter was apparently not reached on Thursday 17th April, although Federal Magistrate granted access to some material produced on subpoena by FAYS and made orders for filing and serving affidavits about changed circumstances with regard to living arrangements. The matter was then adjourned to Thursday 24th April for interim hearing.
In the meantime, the father had commenced to reside in a de facto relationship with a lady named C F He deposed in an affidavit sworn on 22nd April 2003 that he had moved into Ms F’s home over the Easter holiday period. He also described proposed schooling arrangements for the child, indicating his preference for the child to commence school at a church-run school called Cedar College.
The matter came before me on Thursday 24th April 2003. I heard submissions from counsel for the Applicant, for the Respondent, and for the Child’s Representative. The submissions were extensive, and took most of the day. At the conclusion of the submissions, I indicated that I would make an order until further order about the school the child should attend, as that was a matter of urgency, but I would consider the other issues after I had re-read all the material being relied upon, which was quite extensive.
The question of the child’s school was a matter of urgency, as she was due to commence school on Monday 28th April. Ms Lewis, counsel for the mother, submitted that the child should commence at the Burton Primary School, as she had been attending the Burton Park Pre-School, a “feeder” pre-school for the Burton Primary School. Mrs West, counsel for the Child’s Representative, supported the application that the child should attend Burton Primary. Counsel for the father, Mr McQuade, indicated that his client would prefer that the child commenced at Cedar College, but would not argue against Burton Primary.
I ordered that the child should attend the Burton Primary School, on the basis that the child had been expecting to go there and had been involved in some familiarisation visits. I gave my reasons at the time, but I am satisfied that starting school from pre-school is a milestone in a child’s life, and it would give the child more stability if she was to start school where she had always expected to go, and where some of her friends from pre-school were going.
I adjourned the proceedings until today, in order to give proper consideration to the serious issues before the Court for interim determination. I am mindful of the fact that the hearing of this matter on a final basis would be lengthy, as there would be a number of witnesses, both lay and expert. I consider it unlikely that all of the evidence could be taken within two days, and I note that the submissions in the interim matter alone took most of the day. It appears to me that the matter may need to be transferred to the Family Court for a final hearing, due to its length and complexity. As a result, any interim decision that I make will be likely to be in force for some time, and this in itself will be likely to have an effect on the proceedings.
Principles to be considered
The question of how the question of a child’s residence should be decided has been the subject of a number of decisions of the Full Court of the Family Court from the landmark of decision of Cilento (1980)
6 Fam LR 35; FLC 90-847 on. In that case, the Full Court pointed out that it is not the task of the Court on an interim hearing “to determine whether the interests of the child would be better served by being in the custody of one particular party. That is the task which will face the court when the contested custody application comes on for hearing and all the evidence is placed before the court. While the court must always have regard to the welfare of the child as the paramount consideration that welfare will not be promoted by a decision based on inadequate and hastily prepared material presented at a circumscribed hearing.”
The court went on to state that “the interests of children would normally best be served by ensuring a degree of stability in their lives until the matter can be fully investigated by the court and a full hearing of the issues within a reasonable time. Unnecessary disruption to the life of the child should therefore be avoided.”
The Court was of the view that children are usually better left in their existing arrangement until a final hearing, with this important proviso:
“Unless convincing proof is provided that the child’s physical or mental health or moral welfare will be really endangered by the child remaining in that home with that party until the contested application is heard.”[1]
[1] FLC 90-847 at 75, 345
In Cowling (1998) FLC 92-801, the Full Court effectively re-affirmed the so-called “Cilento principle” by stating that the criteria referred to “remain relevant in relation to an application for an interim residence order.” The Full Court again stated that “Having regard to the provisions of s.65E, in determining what interim parenting orders should be made, the court must regard the best interests of the child as paramount.” It is important for the court to consider that:
“Where the evidence clearly establishes that, at the date of the hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary. Such indications would include but are not limited to convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment.”
Conclusions
In this case, I am satisfied that the child was living in a well-settled environment when she was residing with her mother. This arrangement was brought about as a result of the orders made by consent in this Court on 22nd March 2002. The child resided there until her father made the decision not to return her from contact on 9th March 2003.
Applying the principles set out in Cilento (supra) and Cowling (supra), I must consider whether there is “convincing proof” that the child’s “physical or mental health or moral welfare will be really endangered” (Cilento) or “that the child’s welfare would be really endangered” (Cowling) by her remaining in the mother’s home until a final hearing. Ms Lewis, for the mother, and Mrs West, for the Child Representative, submit that there is not convincing proof. Ms Lewis also argues that the material shows a considerable amount of hostility directed towards the mother from the father and his family.
The father’s case shows many signs of having been put together in haste. There is no direct evidence from the father about any of the allegations of violence by the mother. Neither the paternal grandmother nor Ms F are on affidavit, although each of them was readily available. The father was living with his mother until Easter, and he now resides with Ms F. Mr McQuade, counsel for the father, was at pains to point out to me that Ms F was present in court and had attended court on every occasion, although she had not set out her evidence in any document except for a letter of complaint that she wrote to the Chief Federal Magistrate dated 5th April 2003. The apparent thrust of counsel’s submission was that Ms F’s presence was somehow probative of the father’s case.
The father’s case rests on these documents:
a)
the assertions by Ms F of FAYS in her Case Plan dated
10th March 2003;
b)the father’s assertions in his affidavit sworn 9th March 2003;
c)the notes from Dr C, a general medical practitioner, annexed to the father’s affidavit;
d)a statement from one E L dated 5th March 2003 annexed to the father’s affidavit; and
e)the psychological report from Y H dated 31st March 2003.
It would have been preferable had Ms F made an affidavit. Her Case Plan refers to a finding of emotional abuse of the child, but she has formed the view that both parents should share the responsibility for this. She also refers, however, to a disclosure to her by the child that the mother had used violence to her, which is a disturbing allegation.
The father’s affidavit is an imperfect document, to say the least, showing signs of having been hastily thrown together, including a handwritten cover sheet headed “Family Court of Australia” (these proceedings are, of course, in the Federal Magistrates Court). The text of the affidavit contains numerous expressions of opinion, and the nearest it comes to providing evidence of the child having been hit in the stomach by the mother are contained in paragraphs 21, 23 and 24, all of which are examples of second hand hearsay, and even third hand hearsay, eg. “She then informed my mother who was present that B had confirmed to her the allegations of abuse…”
Section 100A of the Family Law Act allows a court to admit hearsay evidence of a statement by a child relevant to that child’s welfare, but contains the rider in subsection (2) that “A court may give such weight (if any) as it thinks fit to evidence admitted pursuant to subsection (1).” The authors of the text “Australian Family Law” published by Butterworths express the view that s.100A only applies to first hand hearsay:
“Evidence of police officers that children have made allegations to them that the children have been sexually abused by their father would be admissible in Part VII proceedings under s. 100A. However, the evidence of the child’s mother that the children had made these allegations to the police would not be admissible under s 100A.”[2]
[2] Chisholm, R and Dewar, J, ‘Australian Family Law’ Volume 1, Butterworths, Sydney (2001), page 1694
With respect, I agree with the learned authors on that point. I am not persuaded that such statements have any evidentiary value at all.
What the father has also done is annex various unsworn documents to his affidavit, including Dr C’s notes and the statement by E L. The practice of annexing a document prepared by one person to the affidavit of another is, unfortunately, all too common in proceedings under the Family Law Act and courts have difficulty in persuading some practitioners that annexing one person’s document to an affidavit sworn by another does not add anything to the document’s probative value. There does not appear to be any reason why Dr C and Mrs L could not have deposed to the truth of these statements in affidavits of their own. It may be that the degree of perceived urgency made it difficult to have those separate affidavits ready for filing on 10th March, but that does not explain why the people concerned were not on affidavit when the matter was heard on 24th April, some six weeks later.
I am mindful of the fact that these are interim proceedings to which s.75 of the Evidence Act 1995 applies, and no formal objections were taken to the admissibility of the material concerned. This material would not be admissible on a final hearing. Dr C’s notes refer to a history apparently given by the child when he examined that she had been hit. Mrs L’s statement contains her account that:
“B related to me that she had been hit in the tummy twice, and vomited afterwards, a couple of nights previously.”
Y H’ report does not contain any account by the child that she has been subject to any violence. Ms Lewis of counsel has criticised the report as not being an independent report, but I am not satisfied that I should make such a finding. The report was prepared for a specific purpose, as the result of a FAYS referral, and Ms H stated that she had obtained her background information from the FAYS file. The report was prepared for the purposes of FAYS, not for these proceedings, and it should be regarded in that light.
Notwithstanding the obvious deficiencies in the way the material has been presented, there is evidence from Ms F’s Case Plan, Dr C’s notes and Mrs L’s unsworn statement that the child was struck in the stomach by the mother to such effect that she vomited afterwards. This is a most disturbing allegation and, if it were made out at a final hearing, would be regarded very seriously by a court. The violence alleged is not of a type that would be seen as an acceptable means of physical chastisement of a child of less than five years old.
It is for this reason that I consider that there is a reason for me to find that it would not be in the child’s best interest for the child to remain living with the mother until the evidence can be fully considered at a final hearing. I am satisfied that there is evidence of an unacceptable risk that the child may be the subject of physical violence. This does not mean that there should be no contact, but I do consider that the mother should have to accept some supervision. The appropriate officers from FAYS should be involved in order to attempt to ensure that the child can retain her relationship with her mother without the fear that she will be hurt.
I am satisfied that there should be a report prepared pursuant to s.62G of the Act, in order to give the Court an independent view of matters relevant to a final determination. The question of the child’s weight appears to have occupied a lot of the parties’ attention, and I am convinced that she should not be subject to being constantly weighed until these proceedings are resolved, except by a medical practitioner for an appropriate medical purpose.
The child has been the subject of an assessment by a clinical psychologist. It will not be to her benefit for her to be subject to any more psychological examinations at this stage, and I am concerned about the possibility of “system abuse”. I propose to order that no more psychological testing should be carried out unless it is with the leave of the Court.
I have referred to a letter written by Ms C F on 5th April 2003, complaining about the proceedings in this Court the day before. The letter was addressed to the Chief Federal Magistrate, but Ms F forwarded a copy to this Court marked for the attention of Federal Magistrate Mead.
This copy of the letter has been placed in the correspondence section of the Court file, and I made it available to counsel for their perusal. Counsel for the applicant and the respondent and counsel for the child representative were unaware of the letter up until that time, but I made it quite clear that:
a)the letter had been written and forwarded to the Court; and
b)I would take no notice of any of the material in the letter, but would decide the matter before me on the basis of the evidence and the submissions by counsel.
I made the decision to inform counsel that the copy of the letter had been forwarded to the Court marked for the attention of Federal Magistrate Mead because courts must not only act impartially, they must be seen to do so. It would be improper, to my mind, for the Court not to disclose that such a letter had been forwarded to the Court by a person who is, potentially, a witness in the proceedings for one of the parties. No party to the proceedings would have confidence in the integrity of the court process if they were to ascertain that someone had sent a personal letter to a judicial officer canvassing matters relevant to the case. It is unrealistic to assume that a party would not find out.
The matter for concern is not that someone chose to complain to the Chief Federal Magistrate about the actions of a Federal Magistrate hearing part of the proceedings; none of us are immune from criticism. The impropriety arises because:
a)more than half of the letter contains a discussion of allegations directly related to the applicant’s case, including some allegations which do not appear in any affidavit or any other document forming part of the evidence; and
b)the writer forwarded a copy of the letter to Federal Magistrate Mead, who normally sits at the Adelaide Registry of this Court.
I made it quite clear that courts do not make their decisions on the basis of private letters sent to judicial officers by interested parties. Courts decide cases on the evidence and as a result of submissions put to them in open court.
Mr McQuade of counsel put to me that the letter should not be seen as any sort of an attempt to influence the outcome of these proceedings, because it was common knowledge that Federal Magistrate Mead is currently away from the court by reason of ill-health, and is not expected to return to work for another couple of weeks. I do not accept this submission.
The writer states in her letter:
“I am of the understanding that this Friday when we re-appear in Court, we will be having a New South Wales Federal Magistrate by the name of (name suppressed). I do hope that this time the right thing is done by him and B is removed from the torture and abuse she currently has to face each minute of every day while with Diana and Grant.”
The writer goes on to say:
“I have sent a copy to Magistrate Mead’s office for her also to read.”
In the light of these statements, I find the submission made by the father’s counsel that there was no attempt to influence these proceedings impossible to accept. What other purpose can there be in devoting a significant part of a letter to the court to a discussion of the evidence and an expression of a hope about a decision yet to be made?
It appears clear that the proceedings, when heard on a final basis, will take considerably more than two days to hear. It is likely that there will be nine or ten witnesses, including Dr Cormie, the FAYS officer, the clinical psychologist and the writer of the family report. Mrs West, counsel for the child’s representative, raised the possibility that the final hearing may well need to take place in the Family Court. I agree with that view.
I consider that the letter written by Ms F to the Chief Federal Magistrate and to the Federal Magistrate who usually sits in Adelaide has the potential to compromise the perception of the impartiality of a final hearing in this Court. I would certainly not hear the matter on a final basis. The court process must be seen to be impartial. In my view, the only way to guarantee that this can occur is to transfer the proceedings to the Family Court, so that there can be no suspicion that the judge hearing the case has any knowledge of the issues other than the evidence that it is presented in the proper way.
It is for these reasons that I propose to transfer these proceedings to the Family Court. I intend to forward a copy of this decision to the Registrar of this Court.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 5 May 2003
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