Madera& NARDOS (No.2)

[2019] FCCA 3798

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADERA& NARDOS (No.2) [2019] FCCA 3798

Catchwords:
FAMILY LAW – Where spend time orders provide for the children to spend unlimited extra time with the father at their request – where history of baseless allegations against the mother by father and children – where new allegations of assault made against mother – where allegations were found to be baseless twice previously – best interests of the children – variation of spend time orders.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund, In the Marriage of, Re (1978) 6 Fam LR 570

Applicant: MS MADERA

Respondent: MR NARDOS

File Number: ADC 4651 of 2012

Judgment of: Judge Young

Hearing date: 12 December 2019

Date of Last Submission: 12 December 2019

Delivered at: Adelaide

Delivered on: 12 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Anderson

Solicitors for the Applicant: Cg Family Law

Counsel for the Respondent: Mr Childs

Solicitors for the Respondent: Son Nguyen Barrister & Solicitor

ORDERS

1. That paragraph 18 of the orders made on 20 June 2017 be suspended.

2. That the mother file and serve an amended Initiating application setting out the orders she is seeking on a final basis within 14 days of the date of this order.

3. That pursuant to section 69ZW of the Family Law Act 1975 the Department for Child Protection provide the Court with the following documents or information from the 7 December 2019 to the current date.

   (a)Copies of any notifications regarding abuse allegations arising or relating to the children [X] born … 2006 and [Y] born … 2008

   (b)Any assessments or investigations into such abuse allegations;

   (c)The outcome or findings of any such assessments and investigations; and

   (d)Copies of any reports received by the Department of Child Protection in the course of investigating any such notifications.

4. That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department for Child Protection without the Courts leave.

5. That pursuant to section 69ZW of the Family Law Act 1975 the South Australian Police Department is requested to provide the Court with the following documents or information documents from the 7 December 2019 to the current date.

   (a)Copies of any report or notifications of child abuse allegations or allegations of family violence involving either of the parties MS MADERA born … 1971 and MR NARDOS born … 1972 and the children [X] born … 2006 and [Y] born … 2008; and

   (b)The outcome or findings of any such investigations including antecedent reports for each of the parties.

6. That the Mother do have liberty to produce a copy of the following to South Australia Police:

   (a)A copy of the Order made this day;

   (b)A copy of the published reasons delivered this day.

7. That the proceedings be adjourned to 3 March 2020 at 2.15pm for further consideration of the Rice & Asplund application.

IT IS NOTED that publication of this judgment under the pseudonym Madera & Nargos (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4651 of 2012

MS MADERA

Applicant

And

MR NARDOS

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an initiating application by the mother filed on 22 May 2019 where in what I consider to be a poorly drafted application, she seeks sole parental responsibility and that the children, [X] and [Y], who are 13 and 11 respectively, live with her. The final orders sought in that application are vague in the extreme and simply seek orders “as the Court may deem appropriate” – a very unhelpful application.

3. When asked today about what final orders the mother was seeking, Mr Anderson told me that he was instructed that the mother seeks an order suspending the children’s time with their father, that the father attend on a psychiatrist or psychologist with a view to encouraging him to support the relationship between the children and their mother, and, if necessary, involving the children in that process.

4. The background to that application is important. These parties entered into consent orders on 20 June 2017 which resulted in the mother having sole parental responsibility and the children living with the mother and spending time with the father. As I observed in some earlier reasons given on 21 August 2019, these consent order was made following a Family Report that was particularly unfavourable to the father and raising doubts about his child focus, his insight into the needs of these children, and his willingness or otherwise to facilitate a relationship between the children and their mother.

5. The particular matter that was dealt with that was highlighted in the Family Report was that the father had not complied with orders for supervision. Indeed, prior to the Family Report being published, he had spent time with the children or the children had spent time with him, in the absence of his nominated supervisor who I seem to recall was a family member. The allegation was that the father had encouraged the children to lie to their mother about the absence of a supervisor or the nominated supervisor, and that caused a psychological burden for the children, not surprisingly, having to lie to their mother.

6. The Family Report writer took the view that that reflected a very serious lack of insight into the needs of these children by the father and a willingness, really, to operate in a way which was inconsistent with their best interests. As I say, that was the Family Report that led to consent orders being made on 20 June 2017, in the terms that I’ve mentioned.  There were time spending arrangements in that order which saw the children spending relatively limited time with their father, but substantial and significant time, I think it is fair to say. 

7. A particular order that has been the source of dispute recently, at order 18, permitted the children to spend, if the children requested it, extra time with their father. The reality is that the order is drafted in a way that if the children request the time, the extra time is unlimited, and the mother is, by the terms of the orders, required not to object unless she has a “good reason”. A “good reason” has not been defined. It appears that that order has been acted upon by the children and by the father a number of times recently, which saw the children’s time with their father extended, for example, in December 2018, for approximately a month over the holidays; in January 2019, the children stayed over for an extra day; in April, for a few days, three days, in my count; one more instance in July, where there was a couple of days where they were late returning. Similarly, there was an episode in October 2018 when the children stayed with their father for an extra week and, similarly, in October 2019 when there was a period when the children stayed again with their father for a few days.

8. Apart from the very long period over the holidays, it does not seem to be particularly significant, in my view. However, I am satisfied that against a background which I will describe more fully in a moment, the overstaying of the time, particularly in the school holidays earlier this year, is distressing for the mother and, indeed, is highly productive of conflict between the parties. I question whether that order is appropriate and whether it was ever appropriate having regard to the very high level of hostility, conflict and acrimony between these parties.

9. The other background that I consider as highly relevant is this. As I’ve said, consent orders were made in June 2017 between the parties. On 27 October 2017 the father filed an initiating application seeking to overturn the orders. His affidavit material made a number of allegations against the mother, including neglect of the children, not feeding them properly, assault of the children and the like. I considered those allegations in August 2018 and concluded that they were baseless. In particular, the allegation made by [X] that she had been assaulted, or that [Y] had been assaulted, were false.

10. That was in a context where I was told, at the time, that those allegations of assault, which I’ve dealt with in the earlier decision so I don’t need to deal with in any detail now, were the subject of a police investigation.  So things got to the stage where police interviewed these children on the basis of the quite baseless allegations that had been made. Of course, the allegations, if true, would have constituted aggravated assault, a very serious offence. In any event, the police inquiry was dropped and I have no further information about that.

11. In November 2018 the father’s application, after a child inclusive conference had been ordered and a memorandum produced which indicated in the view of the Family Consultant that the allegations were really cooked up, as between the children at least, was dismissed by consent. As I understand it, there were further allegations made in July of this year, which resulted in another police investigation. I have been provided with the notes from the South Australian police of what appears to be a running sheet, a police running sheet which includes a synopsis of an interview with [X] on 19 July 2019.

12. It appears to have been a joint inquiry with the Department of Child Protection, as well, or perhaps it was referred by the Department of Child Protection. It is a little bit unclear. The police officer who conducted the interview recorded the allegations, which were assault, variously against the mother and against the maternal grandmother. The police officer concluded that the allegations were so varied as to be inconsistent. There was a lack of any corroborative evidence of the assaults. Allegedly, [X] had been hit by either the mother, or later, the grandmother, and [Y] being slapped on the face by his mother so as to leave a mark or a bruise.

13. The police investigated that seriously, it would appear. There were interviews at the school to see whether there was any evidence to corroborate the allegations, but there was not. The police concluded that, given the unreliability of [X]’s complaints, there was no prospect of any successful prosecution. The police concluded that the children were expressing a wish to live with their father and seemed to imply that these false allegations were raised in order to pursue that agenda.

14. There is also a reference to the police inquiry in July 2018 which I was aware of but did not have detailed information about, and the police running sheet is in very similar terms. The police officer who conducted the interview noted that:

    Both children appear to struggle with the truth/lie test in their respective interviews. It’s questionable as to whether either truly understood this concept or, for want of a better term, passed this test.

15. It was also noted that:

    Both children made handwritten notes prior to their attendance for interview, these notes they titled “Things to Tell the Cops”.  Both claimed to have made these notes very recently prior to their interviews. The investigating officer suspects both children have been prompted to do this, which, in itself, is of no issue as to credibility, however, they were given no boundaries/parameters around them referring to these notes during their interviews and were allowed to refer to them at their own will as opposed to only after exhausting their own memories. Both children appear overly, almost completely, reliant on their notes during their interviews and, when probed as to points they raise, they were unable to sufficiently address the matters raised by the interviewer. This leads the investigating officer to have concerns as to the truthfulness of the disclosures made.

16. As I have said, inquiries at the school produced no corroborating evidence whatsoever. One of the concerning things in those notes is the observation that the investigating officer suspected the children to have been “prompted”. If that is so, if there is any substance in that suspicion, it would be a suspicion directed, in my view, only at the father.

17. When this matter came on before me on Wednesday, Mr Childs made an oral application on behalf of the father to vary the existing orders because, [X], at least, and perhaps [Y]; I was not sure, had made a further allegation against the mother of aggravated assault and that there was to be a police interview tomorrow.  Ordinarily, an allegation of that kind would raise serious concerns, particularly as the children are being retained by their father in breach of orders at the moment, as I understand it.

18. As I say, the father is retaining the children at the moment. That is not in conformity with orders. It was said by Mr Childs on Wednesday that I should vary the existing orders in order not to “contaminate” the police forensic interview being held tomorrow, with the implication that, if the children were with the mother, their evidence would be contaminated. As I said to Mr Childs on Wednesday in dismissing that oral application, given the history that I have recounted, I have no confidence whatsoever that the children are any less likely to be contaminated in the father’s care than in the mother’s care. Indeed, given the history, I might have very grave concerns about the “contamination” of anything the children might say to the police tomorrow. In any event, I declined to make the order sought by Mr Childs.

19. My concern is that, in addition to the issue that I described arising from order 18 and its potential to generate conflict between these parties, unnecessary and further conflict in a situation where there is a terrible abundance of conflict, is that it simply engenders more conflict. However, on an examination of all the materials, another very serious issue arises, and that is the third episode of allegations against the mother of aggravated assault from July 2018, July 2019 and now December 2019. In the first case, found by me to be baseless, a conclusion that is reinforced by my reading of the police notes running sheet attached to Mr A’ affidavit and also the similar result in July 2019, when the police effectively concluded that, because of the unreliability of the history given by the children, they were not going to take the matter any further. So the background is of two very serious episodes of very serious allegations against the mother which have been found to be baseless or unreliable, and now there is a third one.

20. Obviously, I cannot pre-empt the outcome of any police inquiry. I do not know what will be discovered but given the history, one might be forgiven for feeling a degree of scepticism about whether anything of substance will be revealed.

21. I am also, given the other matters that I have referred to, of the view that there are very serious doubts about the father’s parenting capacity and I am not satisfied that, at this stage, at least, that the authority that order 18 gives to the children to extend the time willy-nilly, really, is in their best interests at this stage. It simply results in the children spending extended time with the father, who I have already made enough comment about. However, I will reconsider that issue once the police material from the present inquiry or the present police investigation is to hand, and there is a police interview tomorrow and, by the time that is completed and the 69ZW order is satisfied, I expect it will be in March next year. So I am going to adjourn the matter to March next year.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  8 January 2020