Masters and Hun

[2015] FamCA 951

FAMILY COURT OF AUSTRALIA

MASTERS & HUN [2015] FamCA 951

FAMILY LAW – CHILDREN – interim orders – where the mother seeks that the father spend supervised time with the children – where the father seeks unsupervised time with the children – where the mother alleges the children are at risk in the father’s care – where the mother alleges a history of domestic violence perpetrated by the father – where the issue is not whether the father should spend time with the children in the interim but the terms and conditions of such time – where the father proposes his mother and his sister as supervisors – where the supervisors are opposed by the mother – where the mother alleges that the paternal grandmother engaged in debt bondage – where by supervisors were cross examined – where it is ordered that the children spend time with their father in the interim on a graduated and increasing basis supervised by the paternal aunt.

Family Law Act 1975 (Cth) – s 60CC, s 65DAA

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Masters

RESPONDENT: Ms Hun

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4065 of 2013

DATE DELIVERED: 5 November 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 30 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gilbert

SOLICITOR FOR THE APPLICANT: Gilbert & Partners

COUNSEL FOR THE RESPONDENT: Ms Ross

SOLICITOR FOR THE RESPONDENT: Angela Ferdinandy Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

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

Orders

1. That the father spend time with the children B born … 2007 and C born … 2010 (“the children”) as follows:

   (a)during the current school term for four (4) hours from 12 pm to 4 pm each Saturday, commencing 7 November 2015;

   (b)during the December/January 2015/2016 school holidays for four (4) hours from 12 pm to 4 pm each Wednesday and Saturday or on such other day or days as the parties may agree;

   (c)from the commencement of the first term 2016 for six (6) hours from 10 am to 4 pm each Saturday.

2. That all time that the children shall spend with the father pursuant to these orders shall be subject to supervision by Ms D and if not available then by Ms E Masters.

3. That the mother will supply to Ms D and Ms E Masters a telephone number and contact details to enable each of them to contact the mother if circumstances arise during the supervised time that require the mother to be contacted.

4. That the parties do all things necessary and sign all documents as may be required to enable them to enrol in an appropriate children’s contact service to give effect to the handover of the children to the father at the commencement and conclusion of the time that he shall spend with them pursuant to these orders PROVIDED that until the parties have been accepted into the said program or if there is some part of these orders that is not able to be accommodated by the said children’s contact service THEN handover shall occur inside the Suburb F Police Station with the father to remain in the Police Station until the mother has left the station grounds.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4065  of 2013

Mr Masters

Applicant

And

Ms Hun

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Initiating Application filed 31 October 2013, Mr Masters (“the father”) seeks orders that the parties have equal shared parental responsibility for B born in 2007 and C born in 2010 (“the children”).  In addition, the father seeks that the children live primarily with him.

2. By Response filed 20 December 2013, Ms Hun (“the mother”) seeks that she have the sole parental responsibility in respect of the children, that they live with her and spend time with the father as may be agreed between the parties.

3. The overview of the final orders sought by the parties does not give a true account of the hostility between the parties and the complexity of the factual dispute.

4. The proceedings are currently listed for hearing on 5 November 2015 in respect of the delivery of this judgment but also to fix a date for trial and to make trial directions.  At this stage it is likely that the Court can accommodate a final hearing in either late March or early April 2016.

5. The proceedings come before the Court by way of interim relief arising from an Application in a Case filed by the father on 15 July 2015.  He seeks orders that the children spend unsupervised time with him on a graduated and increasing basis commencing with four hours from 12 pm to 4 pm each Saturday and ultimately leading to a 24 hour overnight period then extending from Friday through to Sunday of each week.

6. The father also seeks time with the children on special occasions including Christmas Eve and Christmas Day.  His application is supported by two affidavits filed 15 July 2015 and 9 October 2015 and two further affidavits from his mother Ms E Masters and his sister Ms D both filed 20 October 2015.

7. In her Response filed 21 August 2015, the mother seeks orders that pending trial the father spend time with the children at Relationships Australia and/or Kids Connect Interactive Playgroup as may be arranged.  She also seeks that the father attend an anger management counselling course and obtain a report in relation to his attendance and progress.

PROCEEDINGS

1. The substance of the interim proceedings is the father’s application that the children should spend time with him unsupervised.  The mother opposes his application and says that the history of the parties together is that the father was unrestrained in his domestically violent behaviour towards her and that the children remain at significant risk, not just in respect of the father’s overt aggression but also in terms of serious criminal conduct involving children, child trafficking, domestic violence and criminal activity in Country G.

2. The mother also relays to the Court that the children remain scared of the father, principally arising from the retained memory of B of his observations of the alleged domestic violence perpetrated against the mother.

3. The father asserts that he has been compliant with all directions of the Court, has taken particular care and notice of the recommendations of the family consultant in a report published on 23 March 2014, has attended with the children in observation by Mr H and then attended a number of visits with the children at a children’s contact service without significant incident.

4. The sessions came to an end in mid-2015 and he alleges that the mother has been resistive to any further attempts by him to spend time with the children.  He argues that without the filing of his application it was not the mother’s position to facilitate any time.

5. The proceedings were argued before me on 14 October 2015.  On that occasion the father was represented by his solicitor, counsel appeared for the mother and the Court had the assistance of submissions of counsel for the Independent Children’s Lawyer (“ICL”).

6. At the conclusion of the proceedings, a question arose as to whether Relationships Australia would be able to make arrangements in a timely fashion for the parties to enrol in the program and facilitate the father spending time with the children.

7. In summary, there remained the potential that the orders sought by the mother would be pyrrhic in their outcome.

8. It was also submitted that if the Court considered that supervision should remain as a condition of the father spending time with the children, then an opportunity should be given to him to present the Court with evidence from potential supervisors.

9. Accordingly, I adjourned proceedings to 30 October 2015 ordering that the father file and serve any affidavit material from proposed supervisors.  Compliance with order is to be found in the filing of affidavits from his mother and sister.

10. Helpfully, an affidavit was filed by the mother’s solicitor on 30 October 2015 which confirmed that if the Court were to order supervised contact, then the children’s contact service at Suburb K could not facilitate supervised contact until January 2016.  There was some prospect that one session may be able to be facilitated prior to New Year.

11. The difficulty therefore was that if the father’s time with the children was ordered to take place at the contact centre a period of six or seven months will have elapsed since the last physical contact.

12. It was anticipated that the father’s mother and sister would attend and if required give evidence and be cross examined.

BACKGROUND

1. The mother was born in 1984 and is 31 years of age.  She works as a care worker.  The father was born in 1978 and is 37 years of age.  He is visually impaired and does not work.  It is asserted that he suffers from obsessive compulsive disorder.  He is in receipt of a disability pension.

2. The parties met in Country G and formed a relationship in 2005.  They married in Country G in 2006.  The father alleges that the parties are not legally married as at the time the mother was legally married to another person.  The mother says that this marriage was annulled and that the parties entered into a genuine marriage ceremony in Country G.

3. In 2007 the parties travelled to Australia and in 2011 the mother obtained a visa enabling her to reside permanently in Australia.

4. Whilst both children were born in Country G they are now Australian citizens.

5. The relationship ended on 8 October 2013 and the parties have been in heightened conflict from a time shortly thereafter noting the proceedings were commenced by the father on 31 October 2013.

6. On 29 October 2014, the father was arrested and charged with aggravated assault.  The mother took out an intervention order against the father.  The father was subsequently charged but ultimately acquitted of two counts of contravening the order.

7. The father alleges that the mother suffers from depression, abuses prescription medication and consumes alcoholic beverages to excess.

8. Unfortunately, each of the parties allege significant and serious domestic violence perpetrated by each against the other.  The mother says that the father sexually assaulted the children, attempted to abort her pregnancies and perpetrated domestic violence in the presence of the children.  As a result, the mother says that the children exhibit sexualised behaviour.

9. The mother also alleges that the father has been involved in child sex rings and prostitution in Country G.  She says that she was assisting the Australian Federal Police with respect to the investigations that the father had engaged in unlawful sexual intercourse with a child in Country G and had committed human trafficking offenses.

10. The mother also alleges that the father’s parents were engaged in debt bondage with respect to their conduct towards her.

11. For his part, the father appears to have undertaken significant efforts to disprove the allegations of the mother resulting in a clear assertion that the mother has concocted various documents which purportedly make admissions of the father’s domestic violence in Country G and also his alleged period of imprisonment.  In respect of one such document, the father alleges that the evidence produced by him demonstrates that the parties were in an airport in another part of Country G at the time the document was allegedly acknowledged by him by using his finger print.

12. The father also submits that a newspaper article relied upon by the mother was a concoction and was promoted by either the mother and/or members of her family, but in particular the maternal grandmother by paying a journalist to fabricate a story.

13. On 27 November 2013 orders were made that restrained the mother from removing the children from Australia and on 23 December 2013 an ICL was appointed.

14. On 13 February 2014 an order was made for the preparation of a s 62G(2) report and on 15 April 2014 by consent, the parties agreed that the children would live with the mother but that they would engage with a therapist in order to commence the reunification process referred to in the said report.

15. The proceedings were transferred to the Family Court of Australia on 5 November 2014.

REPORT OF FAMILY CONSULTANT

1. Pursuant to the order, the family report was published on 23 March 2014.  At the time of the report and the observations of the children with the parties, C was three years of age and it was not considered appropriate that she be interviewed.  Whilst observations took place of the children with the mother, that did not occur with the father. Notwithstanding the family consultant encouraging the mother to support the children coming into contact, she remained opposed to the children spending time with their father and was of the view that it would be “too traumatic for the children without warning, preparation and without knowing if and when they would see their father again”. She also alleged that she felt unsafe being in the next room but in any event in geographic proximity to him.

2. The family consultant was clearly presented with a complex factual history.  The allegations made by each against the other were at the most grievous end of the scale, each raising serious allegations of family violence against the other.  Ultimately, the family consultant did not feel confident to make any recommendation in terms of the father spending time with the children but rather, that there be an interim step namely, that both parties and the children engage with a family therapist over a period of six months to focus on the “reunification process”.

3. The parties agreed that they would engage in the recommended therapy and to this end both instructed Mr H to assist in the reunification.

RELEVANT SUBMISSIONS

1. It is not controversial that the father spent time with the children through August 2014 under the guidance and supervision of Mr H.  It is the father’s position that not on any occasion did the children show any sign of distress.  Indeed, it is his assessment that they were “overjoyed” at spending time with him.

2. The mother does not admit that the children were pleased to see the father, but rather reports information she received from her support worker was that the children were not focussed on their father and their interaction with him.

3. Moreover, she says that after the observed interaction the children displayed significant behavioural difficulties and distress.  B allegedly vomited following the second and third visits and both children recommenced bed wetting and seeking to sleep with the mother. 

4. Unfortunately Mr H did not provide a report, but by email from the ICL forwarded to the parties dated 17 October 2014 the following is set out in relation to a report given by Mr H to the ICL:

   In accordance with orders made by Judge Baumann in April 2014, he has been conducting reunification counselling with the family.

   There have been about eight sessions involving the parties and children.  There have also been some sessions which include the paternal grandparents and paternal cousins of the children (of similar age).  In the office setting – the various interactions between the father and children have gone very well.  The children have a clear and affectionate attachment to their father.  They have shown no concerning signs of fear or anxiety with their father.

   However the mother’s anxiety has continued.  There was one appointment where she attended in company of a security officer.  He does not believe that she will readily agree to progress the father’s relationship with the children.  Given my advice that [Mr H’s] role is not forensic – he will not be providing a formal written report.  If the parties cannot agree to some ongoing assessment (like CCS visits) – he believes that it would be prudent for an updated forensic assessment by [Ms I]. He can them have some input by speaking with [Ms I] incidental to her completing her updated report.

5. On 5 November 2014 an order was made that the father spend time with the children at a children’s contact service.

6. Whilst perhaps now of less moment, the father complains that the mother was resistive to the commencement of the supervised time.  The mother asserts that there were difficulties in making the necessary arrangements and that at all times she has complied with orders of the Court.

7. In any event, supervised time did not commence until March 2015.

8. To his affidavit filed 15 July 2015 the father annexes various photographs which appear to show happy interaction between he and the children, but more importantly, he annexes the observation reports of the contact supervisors.

9. The interaction between the parties is highlighted by mistrust, fear and conflict.  The mother says that she is unable to have anything to do with the father unless she has a support person to facilitate her involvement and the children’s attendance.  She was also prohibited for a period due to her bail conditions which prohibited her from being in the vicinity of the father.

10. Of more concern is that she “observed the negative reactions of the children following their contact with the father”.  As a result she determined that she would not agree to him having telephone contact with the children on Christmas Day.

11. The father spent supervised time with the children at the children’s contact service with the first visit commencing Thursday 5 March 2015 and the concluding sixth visit on 4 June 2015.

12. It is a reasonable summary that save and except for the last session, the first five were uneventful.  The children did not appear to be upset and the observations are of the children seemingly being affectionate with the father.  Some criticism was made of an observation of B being bored but there was certainly no adverse observation on that occasion.

13. In the second visit it appeared that B was a little oppositional whereas C was affectionate and sought out the father’s attention.

14. In respect of the third visit, it appeared that B was resistant to seeing his father whereas C was keen to do so.  Ultimately both children did spend time with him and on this occasion it appears that B was keen for the visit to continue.

15. The fourth visit was uneventful and when distracted all sat closely together and behaved appropriately.

16. The fifth visit was uneventful and the children appeared to react positively to their father’s signs of affection.

17. B was again somewhat oppositional but ultimately was cooperative and engaged in the process.

18. The last visit on 4 June 2015 was however more eventful.

19. Apparently at a point towards the end of the visit, C wanted to terminate the visit early and to see her mother.  On the father being told that C was not returning to the contact room, the father was observed to become aggressive and accused the supervisor of allowing the visit to be terminated prior to the father saying a proper goodbye to C.

20. B remained in the room but the father appeared unable to control his anger, could not refocus on B but instead threw his bag against the wall and refused to leave.

21. It was clearly a difficult circumstance for all involved but in particular B who remained.

22. Ultimately the father was escorted out of the building but was heard to persist in his aggressive tone.

23. The issue is not whether the father should spend time with the children in the interim but the terms and conditions of such time.  The mother seeks that his time be the subject of supervision either by further sessions at a children’s contact service or at a Kids Connect Program.

24. For his part, the father says that he has complied with all orders, that the process of him spending time with the children commenced in March 2014 with the publication of the report of the family consultant and that he has complied appropriately with all orders including a favourable observation by Mr H and interaction as observed by the children’s contact service supervisor.

1. The mother focusses particularly upon the father’s aggressive conduct on the last visit as a basis for caution.

PROPOSED SUPERVISORS

1. The mother did not consider it necessary to seek different orders notwithstanding that it would not be until January that the children’s contact service could facilitate further time.

2. The father seeks to have his time supervised by his mother and his sister.

3. That is opposed by the mother.

4. Each of them have filed affidavits in the past which are not complimentary of the mother.  The mother says that they are not able to control the father and in any event may well be complicit in his behaviour.

5. At paragraph 9 of her affidavit filed 30 October 2015 the mother says:

   As to paragraph 5 of the Affidavit, I say that I have witnessed [Ms E Masters] appear frightened of the father many times during the relationship. She was unable to calm him from a fit of rage numerous times throughout the relationship.  I have observed [Ms E Masters] during a dinner time at her house, when the father became agitated, angry and aggressive, she was unable to control him and broke down in tears, and her husband, [Mr J Masters] had to intervene and myself, [Ms E Masters] and the children were required immediately to leave the room for fear of our safety.

6. In summary the mother says that when the father was violent, “the family would band together”.

7. The involvement of the husband’s sister Ms D is somewhat different.  The mother says that she had a good relationship with Ms D and sets out occasions in 2012 when Ms D picked her up and took her to her home in circumstances where the parties were in conflict.  She says:

   [Ms D] was well aware of the violence throughout the relationship and a number of times me and the children would stay at her home to protect ourselves from the father when he was acting violently.  However, during the relationship when we argued and the father became violent, either the father or myself would call either [Ms D] or his parents.

8. There is a further history between the mother and the paternal grandmother.  It is alleged that the father and her mother engaged in debt bondage in that upon her arrival in Australia the paternal grandmother escorted the mother to Centrelink, obtained a Centrelink benefit or pension and then required the mother to give almost the entirety of her benefit to both the husband and the grandmother.

9. It is recorded by way of a case note entry detail from the Australian Federal Police obtained by way of subpoena that:

   A number of inconsistencies were identified in relation to the debt bondage offense when put to [Ms Hun].  It was originally reported by [Ms Hun]:-

   She had no access to bank accounts;

   She paid [Mr Masters’] mother [Ms E] each week but didn’t know why;

   She was given $20 per fortnight to spend by [Ms E]; and

   [Ms E] arranged her Centrelink but had no access to it.

10. The Australian Federal Police however established:

    [Ms Hun] had access to her bank account;

    [Ms E] purchased flight tickets, goods to furnish her house and spending money for [Ms Hun] and [Mr Masters];

    [Ms Hun] and [Mr Masters] were paying [Ms E] back each pay;

    [Mr Masters] had given [Ms E] control over his finances prior to meeting [Ms Hun] due to a gambling addiction;

    [Ms Hun] was given her Centrelink entitlement; and

    [Ms Hun] transferred money online to various bank accounts and [Ms E] did not have access to [Ms E’s] account.

11. The investigation was not proceeded with.

12. There is clearly an unfortunate history as between the mother and the paternal grandmother.

13. The paternal grandmother was subjected to extended and probing cross examination by counsel for the mother.  Whilst the witness made it clear that she did not have much regard for the mother, I did not form the view that she would abrogate her responsibility to appropriately supervise and protect the children simply because she considered the allegations of the mother to be concocted.

14. She is however clearly supporting her son and the question is whether she has a level of independence that enables the Court to be satisfied she can put her differences with the mother aside and focus on the purpose of supervision which is to remove herself from the proceedings and focus on the need to ensure the children are protected at all times.

15. The father’s sister was also subjected to extensive cross examination.  I found her to be highly impressive in respect of her clear commitment to the children and I was left in no doubt that she is unlikely to be suborned by her brother or indeed anybody else if faced with any concern in respect of the safety of the children.

16. If anything, the father’s sister was kindly disposed towards the mother and appeared to be an honest broker in attempting the parties to deal with their differences whilst they were together.

17. She has not seen the children for two and a half years and whilst her role is that of a supervisor, there may well be considerable benefit to the children in coming into contact with her.

18. I was impressed with her evidence and accept that she has a clear and absolute understanding that her only loyalty and focus is to appropriately supervise the time that the children may spend with their father and to ensure that it is done safely and in circumstances where the slightest deviation from that which is considered appropriate would see the time with the father terminated and the mother advised.

CONCLUSION

1. The ICL strongly supports that there be time between the children and their father supervised by either the paternal grandmother or the paternal aunt. Further, it is submitted that the time should be of four hours duration once a week but that during the Christmas school holidays it should be extended to two occasions subject to the availability of a supervisor.

2. Handover should occur ultimately at a children’s contact service but until that arrangement can be put in place handover should take place at a Police Station.

3. The father does not speak against such an outcome, the mother remains trenchantly opposed.

4. I have regard to the legislative pathway as set out in Goode & Goode (2006) FLC 93-286. At paragraph 82 of the judgment the following is stated:

   In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)identifying the issues in dispute in the interim hearings;

   (c)identifying any agreed or uncontested or relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parent unless it is contrary to the child’s best interests or as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents unless contrary to the child’s best interests as the result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time or substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of considerations of one or more of the matters in s 60CC;

   (j)the presumption is not applied or is rebutted, then making such an order as is in the best interests of the child, as a result of considerations of one or more of the matters in s 60CC; and

   (k)even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither party has sought it, the court considers after affording procedural fairness to the parties it is to be in the best interests of the child.

5. The parties clearly agree that it is not appropriate there be an order for equal shared parental responsibility, nor indeed is there any reasonable expectation by the father that equal or shared care or time would or should be contemplated at this stage.

6. The father seeks significantly more modest time with the children and concedes that the Court may well consider such time to be the subject of supervision.

7. The clear focus of the proceedings is to give weight to the need for these children to maintain a meaningful relationship with each of their parents but to do so in circumstances where they are not at risk of abuse or harm.  Given the assertions of the mother, I clearly focus upon the potential for harm or risk to the children and consider that there is an appropriate balance in terms of the weight to be given to the protection of the children by imposing supervision.

8. The opportunity for the children to spend time with their father in a children’s contact service is limited and it is important that a relationship resume sooner rather than later.

9. It is not simply a matter of the father’s time progressing to a different level simply because he has undertaken a number of supervised and observed sessions.

10. I consider that the children will benefit by a more natural and less clinical setting to spend time with their father.

11. He should be free to engage the children in a range of activities that are likely to be beneficial to them.  That cannot happen at the children’s contact service.

12. I am supported by the positive observations of the therapeutic counsellor and significantly persuaded by the strong submissions of the ICL.

13. The two proposed supervisors are clearly appropriate people with the Court being significantly impressed by the paternal aunt.

14. I propose to order that the children spend time with the father supervised by Ms D in the first place, but if she is not available then Ms E Masters. The duration of contact will be four hours and will occur weekly with a further period each week place during the school holidays.

15. I do not propose to make any special arrangements for the Christmas period other than to note that this year Christmas Day falls on a Friday and I propose that the children spend time with their father on each Saturday.

16. Initially, handover will occur inside the Suburb F Police Station, but that the parties will do all things necessary to apply to the Suburb K Children’s Contact Service to assist in the handover only.

17. It is not intended that there will be any restriction on the activities that the father can engage the children in, nor indeed who may be present providing that there is supervision at all times.

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

I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 November 2015.

Associate:

Date:  5 November 2015