Lewiston & Safar
[2022] FedCFamC1F 1096
•14 November 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lewiston & Safar [2022] FedCFamC1F 1096
File number(s): PAC 5992 of 2019 Judgment of: RIETHMULLER J Date of judgment: 14 November 2022 Catchwords: FAMILY LAW – Parenting – Where the father and paternal grandmother seek time with the child – Where the father was convicted and spent time incarcerated for sexual offences against the child’s half-sister – Where neither the father nor the paternal grandmother returned to Court – Proceedings dismissed. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.19
Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 14 November 2022 Place: Parramatta The Applicant: Litigant in person (did not participate) Solicitor for the First Respondent: Solve Legal The Second Respondent: Litigant in person (did not participate) Solicitor for the Independent Children's Lawyer: Harb Lawyers ORDERS
PAC 5992 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LEWISTON
Applicant
AND: MS SAFAR
First Respondent
MR LEWISTON
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
14 NOVEMBER 2022
THE COURT ORDERS THAT:
1.All outstanding applications are dismissed.
2.The Independent Children’s Lawyer’s application for costs against the second respondent father be dismissed.
3.The Independent Children’s Lawyer be discharged as at four (4) months from the date of these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lewiston & Safar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTRIETHMULLER J:
These proceedings commenced with an Application for Final Orders filed on 3 December 2019 by the applicant paternal grandmother.
This is a sad and difficult case concerning a child, X, who was born in 2012, and is currently ten years of age. X presently lives with his mother, the first respondent, and has done so for some time.
X’s relationship with his father, the second respondent, has been effectively suspended as a result of criminal charges brought against the father for sexual assaults against X’s eldest half-sister, who was born in 2006 and is approximately six years older than X. The material before this Court indicates that those assaults involved the father sexual assaulting X’s older half-sister who was only around 11 or 12 years of age at the time (but is now somewhat older). The father was found guilty and sentenced to a period of imprisonment. The father served that period of imprisonment and is now released, having appeared before this Court for various mentions. The father has not had contact with X since his imprisonment.
When the matter first came before me in August of last year (2021), the father indicated that he had an appeal against his convictions pending and continued to stringently deny any criminal liability, saying he had not committed the offences and alleged that it was a concoction between the mother and the eldest half-sister (his step-daughter) to have him, effectively, removed from their lives. Unfortunately, it is not clear that any formal appeal has actually been lodged, in that considerable time has passed without an appeal being heard or determined. The father produced evidence today to indicate that he had lodged an application in the Supreme Court for a review of the conduct of the hearing before the magistrate who sentenced him to the period of imprisonment. He produced his mobile phone, which showed a message indicating the file number of the Supreme Court proceedings and an email message that appeared to come from the Attorney-General’s Department in response to the application with written submissions. As the father is unrepresented and not familiar with court processes, I adjourned the interim hearing this morning to have my associate make inquiries of the Supreme Court as to when the application that is currently pending is likely to be determined, as so as to assist with the case management of the matter. I also asked that the Independent Children’s Lawyer, the mother’s solicitor, and the paternal grandmother to have some conversation concerning the arrangements that should be in place around the grandmother seeing X, given the earlier orders that had been made, but which did not appear to have been functional.
Unfortunately, both the father and grandmother are unrepresented. The material that has been filed is limited, to put it at its best. The father has not filed any recent material of significance going to the issues of this case. He did, however, produce to the Court, this morning, a letter which indicated that he had attempted to comply with an order for participation in a men’s behavioural change course. However, B Support Services, who were running the course, have written in May of this year (2022), that after an initial intake session and an individual session (the program involves some initial one-on-one case work followed by group sessions), that a decision was made by the providers of the course that the applicant was not suitable for the program.
The father indicated in Court that he understood that he was not accepted for the program because the program was not for sex offenders. However, that does not address the difficulty that is at core for the father in this case: even if he is able to overturn his conviction in the Magistrates Court, he presented at the family report writing interviews as being overbearing and controlling in a way which accords with his presentation on the first occasion he appeared before me. His demeanour before the Court was not so angry and forthright on this occasion, although as time wore on, his behaviour became less polite and included interruptions of the proceedings.
The Family Consultant who prepared a Child Inclusive Memorandum indicated a real concern that the father’s attitude to the mother and the eldest half-sister (the mother’s older daughter) is such as to seriously undermine the mother’s relationship with X. In substance, the father is strongly of the view that the mother and eldest half-sister conspired to falsely accuse him, which has resulted in him being incarcerated. One can see how this has the potential, if shared with X (particularly given the presentation and demeanour of the father in Court) to be a serious risk as to the X’s emotional wellbeing.
What makes the case particularly difficult is that X does have some memories of the father which are very positive, and he expressed a desire to see his father again. Whilst a sex offence is a significant risk in any context, in this case it would also need to be balanced against the risk and importance to X of knowing his father and what safety arrangements could be put in place in that regard.
The absence of completion of a men’s behavioural change course or other work to enable the father to put a credible case to the Court as to his capacity to at least shield X from his views, if he were to have contact with him, is a significant issue. It does not appear to me from the father’s presentation in the courtroom that he has any prospect of doing so, nor that he is likely to change in the foreseeable future.
The mother also expresses concerns about the father taking X and says she has installed security cameras around her house. There is little evidence about this in her affidavit (which was filed in 2020), and no recent evidence in this regard. However, there was said to be one incident where the paternal grandfather attended at the school and the principal placed X in the principal’s office to ensure that there were no difficulties. The Department of Community Services has also indicated that they have been making arrangements for the mother to change residence as a result of concerns upon her part. She also obtained a Domestic Violence Order. These are also significant matters which would need to be properly explored at the trial if there were to be questions of contact between the father and X, together with consideration of its potential impact on the mother’s capacity to parent.
In summary, it is a difficult case because it involves a young boy who desires to see his father again and a father who, on the mother’s case, has sexually abused the young boy’s half-sister, is forceful in his denials and claims of a conspiracy by the mother and the half-sister, causes considerable fear to the mother, and presents at Court as angry and dysregulated. The father’s case is that he did not carry out the criminal acts, which does not appear to be sustainable in light of the conviction, unless he has the conviction overturned in the Supreme Court. Even leaving that problem aside, his presentation, not only to the Court but to the Family Consultant for the brief report is such to give real concern as to the way in which he may interact and the capacity of a contact centre to be able to properly supervise if there was to be supervised time, and indeed the risks that X might face if the father were unable to control himself if provoked.
The father expressed the view, prior to the mid-morning break (to allow for inquiries of the Supreme Court and for the parties to explore possible orders for the grandmother’s time), that he would not come back and pursue the proceedings, although declined to formally withdraw from the proceedings. Neither he nor the paternal grandmother have returned to Court. Inquiries have been made of Court security to see if he is elsewhere in the building and I am told that some attempts were also made to see if they had remained outside, perhaps having a cigarette, but it appears that they have left.
It does not appear to me, at this point, that the father or paternal grandmother are choosing to continue in the proceedings. There is power under the rules to dismiss proceedings when a person is absent from a court event: see r 15.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Given the nature of the case, it seems to me that the litigation with respect to the father, ought to end until such time as he is prepared to put forward an arguable case. That, in reality, involves two aspects of his case: first finalising the criminal law proceedings in the Supreme Court (and if they are successful for him, once a retrial has been heard); and second, working with a counsellor, such as to bring himself to a point where he can engage in a men’s behavioural change course. Until he attends to these two matters it is difficult to see what realistic case he has, before one even turns to the concerns of the mother. In the circumstances, I am persuaded that I ought to dismiss the proceedings to the extent that they are an application by the father for parenting orders.
I turn then to the application by the paternal grandmother. The case with respect to the paternal grandmother seems to me to be even more difficult than that involving the father. There is no suggestion that she has in any way engaged in any criminal conduct or in any direct sense presents a risk of harm to X. She had a positive relationship with the mother: on the mother’s own evidence in times gone by (the mother has expressed she was, at one point, quite close to the paternal grandmother and grandfather, and would visit them regularly with the children). When the case was before me a year ago, the grandmother was concerned to have a relationship with X, even asking for such limited information as his current clothing size, because she would like to send him some clothes and gifts.
Orders have been made for telephone time for the paternal grandmother and towards enrolling at the contact centre. This does not appear to have taken place. It is difficult to ascertain precisely why, although the evidence indicates that the mother has not been facilitating that time, and that the mother has not been actively engaged with the contact centre (there being one letter produced that showed, despite numerous attempts to have her attend for an interview, she did not do so). It appears that, at least at this point, the mother is resistant to any form of contact between the grandmother and X. The mother expresses concerns that the grandmother takes the father’s views with respect to the criminal offences, and this is likely to have poisoned the relationship between the grandmother and the mother. It also presents some risks if the grandmother were to share these views with X. The grandmother’s presentation on the previous Court date was almost stereotypical of a concerned grandmother, which led to the orders to attempt to have some relationship possibilities between X and the grandmother.
Today, however, the grandmother has chosen not to remain at Court nor engage with the Independent Children’s Lawyer about the precise difficulties of the contact that was attempted to be arranged between her and X. In these circumstances, there is no way to presently advance the case with respect to the grandmother having relationship with X, given that she has not engaged in discussion about the detail of effecting that on a practical level, and she too has left the Court and not returned. In these circumstances, it seems to me that the most appropriate course is to dismiss the proceedings on the basis that she has failed to appear, and similarly, if and when she seeks to pursue some form of application and is able to put forward an arguable case for orders, she can do so. It may well be that if she contacts a family relationship centre without involvement of the father, she and the mother may be able to make some arrangements between themselves. However, I prefer not to speculate about the likelihood of that coming to pass.
In summary, it seems to me that this is a very difficult case as it presents the reality of the child X likely losing connections with his paternal family as a result of the conduct of the father. The difficulty of navigating the path for X to have some degree of relationship, has become such that the grandmother and father, both unrepresented, were unable to sufficiently engage with the Court, and have now abandoned participating in the proceedings. In these circumstances, it is not appropriate to require the mother to continue to respond to proceedings in the absence of the father and paternal grandmother, for example, to participate in an undefended hearing when their children live with her, and the father and grandmother are not participating.
The applications of the father and paternal grandmother should be dismissed.
COSTS OF THE INDEPENDENT CHILDREN’S LAWYER
In this matter, quite properly, the Independent Children’s Lawyer seeks his costs under the Family Law Act 1975 (Cth), as he is required to do under the grant of the Legal Aid Certificate. In this case, the father does have employment, although it appears from his clothing and presentation that at best it is in the nature of labouring employment. With respect to the grandmother, I have no information as to her having any funds. There has certainly not been funds for them to engage private professionals to assist in the case, either as lawyers or as counsellors or as psychologists.
The case itself presents as a very difficult and challenging one, and the outcome for X, has been less than what may have been achieved had there been real participation by the father and grandmother. However, ultimately, it seems that their participation in the proceedings was, at least, genuine on their part. I am not persuaded that the father’s participation was simply to aggravate the mother, but rather, from seeing him in Court, I am persuaded that he has a genuine concern for his son. Similarly, I have little doubt that the grandmother has a genuine concern for X.
Considering the matters as set out in s 117 of the Act, I am not persuaded that this is a case where it would be appropriate to make the father or grandmother pay the costs of the Independent Children’s Lawyer.
Further, I will make an order that the Independent Children’s Lawyer be discharged in four months in case the father files an application to reinstate the proceedings, to ensure the current Independent Children’s Lawyer is retained as he is familiar with the child.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 20 September 2023
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