MELVIN & KUMAR

[2017] FCCA 2175

FEDERAL CIRCUIT COURT OF AUSTRALIA

MELVIN & KUMAR [2017] FCCA 2175

Catchwords:
FAMILY LAW – Interim Parenting – 11 year old and 4 year old children – allegations of family violence – older child refuses to see father – assessment of risk to older child if younger child spends time with father on supervised basis.

Legislation:

Family Law Act 1975, s.69ZT

Cases cited:

Goode v Goode (2007) 36 FamLR 422
Keats & Keats [2016] FamCAFC 156

Applicant: MR MELVIN

Respondent: MS KUMAR

File Number: PAC 4817 of 2016

Judgment of: Judge Obradovic

Hearing date: 1 September 2017

Date of Last Submission: 1 September 2017

Delivered at: Parramatta

Delivered on: 14 September 2017

REPRESENTATION

Counsel for the Applicant: Ms Druitt

Solicitors for the Applicant: Raihani Lawyers

Appearing for the Respondent: Ms Morrison

Solicitors for the Respondent: Mahony Family Lawyers

Counsel for the Independent Children's Lawyer: Ms Falloon

Solicitors for the Independent Children's Lawyer: John Spence & Associates

PENDING FURTHER ORDER

1. The father shall spend time with the child [X] born 2013 under the supervision of (omitted family contact service) for a period of up to two hours every Saturday.

2. Changeovers shall occur by the father arranging the (omitted family contact service) supervisor to collect the child from the mother’s home at the commencement of his time and return the child to the mother’s home at the conclusion of the father’s time.

3. The father shall pay the fees nominated by (omitted family contact service) for the provision of its service in accordance with their payment policies.

4. Both parties shall do all acts and things and sign all necessary documents to engage (omitted family contact service) to supervise the father’s time pursuant to these Orders.

5. Both parties are injuncted and restrained from discussing these proceedings in the presence or hearing of the children [X] born 2013 and [Y] born 2005.

6. The Independent Children’s Lawyer is to explain to the child [Y] the effect of order 1 herein.

7. List the matter for directions at 9.30am on 1 February 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4817 of 2016

MR MELVIN

Applicant

And

MS KUMAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. There is one issue to be determined in respect of the interim application presently before the Court. That is, should the child [X] born 2013 be spending any time with the father?

2. The parties have two children, 12 year old [Y] and 4 year old [X]. Neither of the children has spent time with the father since February 2016. Much material was relied upon at the interim hearing, including lengthy Affidavits, tender of subpoenaed material and detailed case outlines and submissions. The Court also had before it the Child Inclusive Conference Memorandum dated 7 April 2017 and the Child Dispute Conference Memorandum dated 28 November 2016.

3. Ultimately, the issue for determination is whether there is an unacceptable risk of harm to [Y] if her brother is to spend supervised time with the father?

4. The short answer is that the Respondent has not established that there is such an unacceptable risk. There is not before the Court any expert evidence which would support such a finding. There is not before the Court anything but the mother’s opinion about such matters. [Y] has said to be Family Consultant she would feel terrible if [X] spent time with the father and that “I’m his sister and I own my brother. Not my father.” [Y] also said to the Family Consultant that she “... would keep on fighting until the day he doesn’t have to go.” and “I’d rather be dead than see my father.” However, these are the expressed views of a then 10 year old.  She does not have the capacity to understand the long term impacts of her own decisions.  There are many unknowns in this matter due to the evidence being untested.

5. The Court can only proceed on the limited material before it and in accordance with the principles expressed in authorities such as Goode & Goode[1] and  Keats & Keats[2].

   [1] (2006) 36 FamLR 422

   [2] [2016] FamCAFC 156

6. The father was found guilty of an assault on the mother on 12 November 2015 and a second assault said to have occurred on 25 February 2016 but the matter did not proceed to conviction. The parties were living under the same roof at the time.

7. The father was placed on an 18 month good behaviour bond on 23 June 2016. That bond remains.  A final Apprehended Domestic Violence Order was made at (omitted) Local Court on 23 June 2016 for a period of 12 months.

8. [Y] has been seeing a psychologist since February 2016 and continuing. The psychologist’s notes were before the Court. It appears from the notes that [Y] has reported anxiety about her father, that she is very aware of the situation at home, she was noted to be “talking like an adult” in early March 2016. The further sessions between the psychologist and [Y] indicate a high level of knowledge by the child of the proceedings before this Court, together with a continued high level of anxiety in respect of her father. She is noted as having said on 18 February 2017, “whenever i hear about him, i have trouble breathing, feel nervous, crying” (sic).  She is also noted as feeling “terrified” about the possibility of seeing her father.  At the session on 1 April 2017, two days prior to the Child Inclusive Conference interviews, she described things as ‘tense around court’ and that “he’s not letting us go, he keeps annoying us, always doing something to annoy us.” She then said “I don’t want my brother to go to him, I don’t want him to be tortured, I don’t want him to even see him”. During the interviews with the Family Consultant [Y] expressed that she did not wish to see her father or for her brother to see him, yet she reassured her brother to go with the Family Consultant when it was time for [X] to be observed with his father.

9. I have reviewed the tendered material. It appears that [Y] has been suffering from nightmares for years prior to the parental separation and continued to do so after separation. Both parties have made reports to the Department of Family and Community Services alleging violence in the relationship. The mother has made more allegations than the father. There is a ring of truth to both parties’ allegations. They are not necessarily mutually exclusive.  The evidence is yet to be tested. The Court notes however, that there are findings of fact made by the Local Court in respect of assault by the father on the mother as referred to earlier. Where otherwise evidence of a finding of fact is not admissible to prove the existence of a fact that was in issue in that proceeding, given the exclusions of particular parts of the Evidence Act 1995, such evidence is admissible in these proceedings. [3]

   [3] Part 3.5 of Evidence Act 1995 (Cth) is excluded by virtue of s69ZT of Family Law Act.

10. The parties are both well engaged in these proceedings. As part of that process, they will be partaking in interviews with Dr M for the purposes of an expert’s report being prepared. Such interviews are booked for late November 2017. The process to final hearing will be lengthy, not only because of the number of matters which plague this Court, but also because of the detailed preparation of evidence in this matter and the importance of advice being provided and instructions received upon the release of the expert’s report.  There is a real possibility that the final hearing will be a further 12-18 months away. If there is no order for time in the meantime, [X] will be five years old and he would not have spent any time with the father for almost half his life. [Y] will be 12. The father is not pressing for any time with her on an interim basis. The Court understands that this is because of a reluctance to force her to do so given her strongly expressed opposition to the father. 

11. The orders which are sought by the father insure that there are appropriate safeguards in place for the protection of [X]. [Y] is already seeing a counsellor, who has been engaged with her for some time and with whom she appears to have built a good rapport. The mother is also part of this counselling process. The Court is of the view, that these matters provide sufficient safeguards for [Y] in circumstances where the Court will make an order for [X] to spend limited and supervised time with the father.

12. For all of these reasons, the Court makes the orders as set out at the forefront.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 14 September 2017