Koban and Sisson

[2017] FCCA 2457

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOBAN & SISSON [2017] FCCA 2457

Catchwords:
FAMILY LAW – Mother unable to be served – significant allegations of family violence– Mother’s failure to engage in the proceedings – Warrant for Arrest issued – Warrant for Arrest stayed.

Legislation:

Family Law Act 1975, ss.60CC(2), 67N(2), 67N(3)(a)

Applicant: MR KOBAN

Respondent: MS SISSON

File Number: MLC 4240 of 2017

Judgment of: Judge Stewart

Hearing date: 5 October 2017

Date of Last Submission: 5 October 2017

Delivered at: Melbourne

Delivered on: 5 October 2017

REPRESENTATION

The Applicant appeared in person

No appearance by the Respondent

ORDERS

1. Pursuant to section 65Q(2) of the Family Law Act 1975, a warrant issue for the arrest of the Respondent Mother MS SISSON.

2. Until further order, the execution of the warrant referred to in order 1 hereof shall be stayed.

3. The proceedings are adjourned to 3 November 2017 at 10.00am for mention (“the adjourned date”).

4. The Mother attend Court personally (305 William Street, Melbourne Victoria), with or without a legal practitioner, on the adjourned date.

5. Liberty is granted to the Mother to contact the Chambers of Judge Stewart via email on ((omitted)) in the event that she requires assistance to arrange a secure room in the Commonwealth Courts Building to assist her in completing her obligations to attend Court in these proceedings.

6. The Registry make the necessary arrangements to have the Mother served with a sealed copy of these orders on her Facebook page, such documents to be served via a JPEG file on the Mother’s page and also converted into a PDF format and sent via private message to the Mother’s Facebook page.

7. In the event that the Mother fails to attend at the Court pursuant to order 4 hereof, the stay of the warrant for her arrest made pursuant to order 2 hereof shall be discharged (subject to the discretion of the presiding Judge).

8. Until further order, the Father be and is hereby restrained from being within 10 metres of the Mother at any time, including and in particular when she attends Court on the adjourned date.

9. The reasons given this day be transcribed, revised and placed on the Court file.

AND THE COURT NOTES THAT:

A.The Court will use all practicable avenues to ensure that the Mother and the Father are not brought into contact on the adjourned date, including but not limited to having the Mother attend via video link from a different Court room.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4240 of 2017

MR KOBAN

Applicant

And

MS SISSON

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The proceedings come before the Court in the most difficult of circumstances. It is a parenting application with respect to a child X (“X”) born (omitted) 2009. X is now eight years old.  The Applicant Father has not seen X since 24 December 2010, when X was only 20 months old, when the parties separated. In all probability X would have no living memory of his Father. 

2. The issues in the case are compounded by significant family violence that has been alleged by the Mother against the Father, resulting in a criminal trial against the Father in 2013. The charges against the Father were indictable offences; being two counts of rape, one count of threat to inflict serious injury and one count of threat to kill. These charges resulted in a jury deliberating and finding the Father not guilty of all four charges.

3. The Father’s country of origin is (country omitted) and he is plagued by immigration issues. He currently remains in Australia on a bridging visa. The immigration issues surrounding the Father would likely impact on an assessment of what time, if any, is appropriate for X to spend with the Father. I note that in the Father’s application, initially at least, he applies for supervised contact with X at a Children’s Contact Centre. Therefore, his application on an interim basis does not at first instance seem to be overly ambitious in terms of what might be an appropriate outcome.

4. The Father attaches numerous annexures to his affidavit, including a scanned page from a newspaper called (omitted) announcing he and the Mother’s engagement on (omitted) 2009. He also appropriately discloses the issues with respect to family violence and he too alleges that he has been the victim of family violence by the Mother, including threats to kill and coercive and controlling behaviour regarding money. 

5. Finally, I note that the Mother stood as an independent candidate for the (omitted) in the (omitted) elections on a platform of domestic violence. In an article published in (omitted) on (omitted) 2014, the Mother was described, presumably by her own report, as being a victim of domestic violence. The article said as follows:-

   Ms Sisson lived with an abusive partner for 18 months and speaks openly about the abuse and oppression she endured.  He is now serving time in jail. 

   “I was beaten, I was raped - before and after pregnancy. I was literally a prisoner in my own home,” she said.

   …

   “Every five days, a woman is killed by her partner or ex-partner.  I think sometimes that I had a guardian angel because I’m still here to tell my story.”

6. The story, whilst shocking, is not unusual in terms of the cases that this Court considers. The Court is often faced with the dilemma of trying to assess competing factual versions on an interim basis of what people are said to have endured during a relationship. The Court is often faced with issues as to how or if relationships between children and their parents should be established in circumstances where there is a hiatus of years in their relationship. Those are not unusual, albeit difficult factual scenarios to deal with. 

7. What makes this more difficult is that the Mother has absolutely failed to deal with the proceedings in circumstances where there have been numerous attempts to serve her. This puts the Court in an invidious position, where as a last resort the only option left to the Court may be to have the Mother arrested and brought before the Court, in circumstances where there is no doubt in my mind that she will come to Court and allege that she has been the victim of serious family violence. 

8. However, to some extent, the Mother is the arbiter of her own destiny. I had set out in previous orders that she would be entitled to contact my Chambers to make arrangements to either be placed in a secure room at the Court or to appear by telephone so that the Court may obtain a more complete picture. For this to occur, the Mother needs to put forward her own case and engage in the proceedings in an appropriate way.

Procedural History

1. The Father filed his Initiating Application on 4 May 2017. It is now October and after five months the proceedings have not advanced further. On 27 June 2017 the Father came to Court and the proceedings were adjourned to 30 June 2017 so the Father could serve the Department of Human Services for the purposes of obtaining a Commonwealth Information Order. Pursuant to section 67N(3)(a) of the Family Law Act 1975 (“the Act”), such applications are required to be served on the Department of Human Services (“the Department”). The Father had not served the Department with his Initiating Application and hence the matter was adjourned.

2. On 30 June 2017 the Father sought a Commonwealth Information Order to obtain the Mother’s location via Centrelink documents. The Court was satisfied that the records of Centrelink were likely to contain information in relation to X and the Mother, and by order 3 of the orders made that day the business manager of Centrelink was to furnish the registry manager of this Court with the information contained in the Centrelink records. The proceedings were adjourned to 4 September 2017.

3. As is the practice in this Registry when there is a self-represented litigant, the documents were not to be served personally by the Father, but rather he was to provide $80 to the Registry in order for the Registry to facilitate a process server to serve the documents at the address received by the Court. Thus, the information that was obtained through the Commonwealth Information Order was not provided to the Father. Every safeguard was sought to be taken to protect the Mother from the Father becoming aware of her whereabouts until further investigation into the case could occur. 

4. An order was therefore made that upon the payment of the required fee the Registry Manager was to arrange for a process server to serve the requisite documents on the Mother. There was a further order that if service of any documents was effected on the Mother using the address obtained pursuant to the Commonwealth Information Order, the Registry Manager must ensure that any affidavit of service did not disclose the address but identified the address only as “address provided by the Registry Manager of the Court”. 

5. The Court file contains an email to Mr G, a Registry Services Officer of this Court. This email dated 1 September 2017 was sent by (omitted) Process Service, the process service agency used by the Court. The email reads as follows:-

   Hi Mr G

   As discussed several times, this has been a long drawn out affair. 

   As requested here - with a report in this matter. 

   I will get a more detailed affidavit of attempts to you early next week.

   …

   Several attempts made at the provided address by two different Process Servers.

   On one occasion, a female occupant stated she was not Ms Sisson.

   (We believe it may have been her, but we don’t have a photo of her).

   Other attempts, there was no answer to the door, no one in attendance.

   Sometimes a multi passenger vehicle sighted at the address, other times none.

   Other times loud noises inside the house but stopped when knocking on the door, no-one would come out. 

   We did make inquiries with the local police & Sheriff but all to no avail. 

6. The matter came back before the Court on 4 September 2017 and it became apparent that the Mother may have been able to be contacted via a Facebook page. I adjourned the proceedings to this day and made an order that the Father forthwith contact the process server by and through the Registry Manager of the Melbourne Registry via email, identifying the Facebook page of the Mother in these proceedings. By virtue of order 3 of those orders, I directed that the process server send a private message to the Mother via Facebook as follows:-

   Proceedings have been issued in the Federal Circuit Court of Australia by Mr Koban in relation to your child X born (omitted) 2009. These proceedings have been adjourned to 5 October 2017 at 10.00am. You are required to attend at the Court on 5 October 2017 at 10.00am, with or without a legal practitioner. The address of the Court is 305 William Street, Melbourne in the State of Victoria. If you have concerns about your safety and/or wish to appear by telephone you may contact the Chambers of Judge Stewart on (omitted) to make arrangements. Copies of documents can be obtained by you by contacting the Chambers of Judge Stewart at the abovementioned email address. In the event that you fail to attend on the adjourned date the Court may make orders in your absence or may make orders issuing a warrant for your arrest (subject to the discretion of the presiding Judge).

7. I further directed that the Mother attend personally at the Court with or without a legal practitioner this day, and if she did not attend I granted leave to the Father to seek orders on an undefended basis or a Warrant of Arrest for the Respondent Mother, subject to the discretion of the presiding Judge. On 25 September 2017 there was an email from the process server to the Registry attaching a copy of a report and an unsworn affidavit of service. The document sets out as follows:- 

   I served the documents listed in Item 3 by sending in a private message via Facebook to Ms Sisson the Respondent Mother in this matter on 17/09/2017 at 16.56 hours

   The Facebook page was identified to the Court by the Applicant Father Mr Koban. 

   She confirmed receipt per Facebook stating she refuses to read the documents. 

   Further contact became impossible as she has now blocked access to her Facebook site.

8. There is a further letter annexed to this report setting out that on 15 September 2017 orders were received by the process server for service. It said further that on 17 September 2017 at 4.56pm the orders were scanned into a PDF file and sent to the Mother via her Facebook page as a private message, saying that the attachment was very important and needed her attention and response. At 4.58pm, approximately two minutes after the private message was sent, a message showed “Ms Sisson accepted your request”. She then asked what the attachment was and refused to open the PDF file until she knew what she would be looking at. The letter goes on to say:-

   She asked if we had the correct person which the reply was “Yes, you are the correct person Ms Sisson”  She said “Who said I'm Ms Sisson” I said “Your photo is on the screen” 

   Orders was scanned [sic] again this time in JPG files into 4 photos and sent to her Facebook page again, however she still refused to open anything. She then went offline. 

   Further contact became impossible as she has now blocked access to her Facebook page and she has also changed her profile photo. 

9. The process server said in conclusion “In my opinion, the respondent mother Ms Sisson is evading service”. The Report also includes a screenshot of her Facebook page, which shows she had opened the Facebook message.  

10. The Mother has seven children, one of whom is the Father’s child X. The Father deposes to the Mother having four older children from a previous marriage and two further children since X’s birth. The question becomes what the Court is to do in circumstances where someone who is allegedly a victim (or at least conceivably will make allegations that she is a victim) of serious family violence will not engage in the Court process. The Mother puts the Court in the invidious position where I cannot even make an assessment as to what has occurred. 

11. I note that the Court is directed to be very conscious of issues of family violence and, under the umbrella of what might be in the best interests of X, I must consider the need to protect him from physical or psychological harm from being exposed to abuse, neglect or family violence pursuant to section 60CC(2) of the Act. I also must give greater weight to this primary consideration over and above the first primary consideration as set out in the Act, namely the benefit to X in having a meaningful relationship with both of his parents.

12. In the circumstances of this case, I have little choice but to issue a warrant for the Mother’s arrest. I hope that it is clear from these reasons that I regard this as a last resort, for two primary reasons:-

    a)Firstly, because it seems to me to be a difficult decision to make, if the Mother has in fact been subjected to the serious family violence alleged, which I am unable to assess at this stage and I do note that it is denied by the Father, who says that he has been the victim of family violence. If it does transpire that the Mother has been the victim of serious family violence then there may be very significant reasons why she is not engaging with the Court process. However, at least on the information available, she seems to be, deliberately refusing to engage in the Court process. I want to stress that this Court will do whatever it can to protect victims of family violence from ongoing family violence but unless people are prepared to engage in the process there is little that we can do to assist them.

    b)Secondly, I have regard to the wider interests of X and how, in the face of what the Mother said in the article that I have previously set out and the way she has seemingly evaded service, she is likely to have a very bad personal reaction to being arrested. This is likely to impact on X, particularly in circumstances where he would have no living memory of his Father. There is a possibility, if not a likelihood, that the Mother has conveyed to X that the Father is someone who is not worthy to be in his life, and even if she has not done so I imagine that for an eight year old child such as X, who will be left in the company of his siblings, it would be a horrifying event for the Mother to be taken away by the police. I can understand that there will be a sense of bewilderment, confusion and distress on behalf of not just X but all of the Mother’s children, in circumstances where the Mother is likely to be their primary carer and as best as I can ascertain at the moment, the centre of their universe. 

13. I have also considered whether or not there is power to issue a warrant for her arrest. There is much debate with respect to the issue as to whether the power arises from a Contravention Application only or whether in fact there is an inherent power to issue a warrant for a person’s arrest on a parenting application. In my view, there is in this Court at least, an inherent power to issue a warrant for a person’s arrest without necessarily going through what would ultimately be an artificial process of making an order for time which would not be complied with, the Father then issuing a Contravention Application, and then using the arrest power.

14. In the circumstances of this case, I am going to issue a warrant for the Mother’s arrest.  However, I should record that I will be absent from the Registry until 30 October 2017 and I am unwilling to have that warrant executed in circumstances where I will not be available on immediate notice to deal with the Mother’s arrest. Therefore I am going to give the Mother one last chance to attend in the circumstances. I will issue a warrant for the Mother’s arrest but stay the warrant until 30 October 2017. I am going to make one last effort for the process server to demonstrate to her that the Court is serious about having litigants engage in the proceedings and that although family violence is a significant issue, that it is the Court process that needs to be engaged to deal with these issues and it is not up to individuals to make their own decisions with respect to that. 

15. I will adjourn the matter to 3 November 2017 and ask the Registry to organise for the process server to send to the Mother’s Facebook page JPEG copies of this order, together with a letter to the Mother telling her that the stay on the warrant will be lifted on the adjourned date and she will be arrested in the event that she does not attend Court. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Date: 2 November 2017