Peddar and Vina

[2008] FamCA 892

FAMILY COURT OF AUSTRALIA

PEDDAR & VINA [2008] FamCA 892

FAMILY LAW – CHILDREN – Process and procedure

APPLICANT: Mr Peddar

RESPONDENT: Ms Vina

INTERVENOR: State Central Authority

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8853 of 2007

DATE DELIVERED: 22 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 22 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENOR: Ms R. Stoikovska

SOLICITOR FOR THE INTERVENOR: Victorian Government Solicitor

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. The father have leave to amend his application initiating proceedings within seven (7) days by filing and serving a minute of the orders (as amended) which he seeks be made on a final and on an interim basis, and doing so by filing that minute with a heading that makes clear that it is pursuant to this paragraph of this Order.

2. I adjourn for further consideration the father's application to 4.30 pm on Monday 1 September 2008 noting that I will also consider any application for the mother to spend time with the children F born … April, 1997 and E born … April, 1999 in Melbourne.

3. I request that the State Central Authority advise the court and the father as soon as practicable upon a decision being made as to its participation in these further parenting proceedings.

4. My reasons for decision today be transcribed urgently and a copy of reasons be made available to the State Central Authority, the Manager of Child Dispute Services and the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8853 of 2007

MR PEDDAR

Applicant

And

MS VINA

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. An application initiating proceedings was filed by the father on 28 July 2008 in which he seeks interim orders which, if made, would prevent the children F, born in April 1997, and E, born in April 1999 spending time with the mother, Ms Vina, in Sweden over the forthcoming September/October school holidays.  The order which the father now seeks to vary or stay was made by me on 30 June 2008 after contested proceedings between the State Central Authority and the father brought about by the mother’s request in relation to rights of access under the 1980 Hague Convention.[1]

   [1] Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

2. The father's application initiating proceedings seeks final orders to the effect that the children be protected "from any ongoing steps from the wife to any further exposure to allegations of sexual abuse, and access takes place between the children and the wife which protects the children from any such harm or aspects of it".  As interim orders, apart from a stay of the spend time with orders he seeks that "access that takes place between the children and the wife in the future be in an environment where the children are protected from any ongoing steps from the wife to any further exposure to allegations of sexual abuse".  Today, the father says that he wants to amend the interim application to seek that a full family report be prepared and that both he and the mother be psychiatrically assessed.  I will permit the father to amend his application in some simple manner.

3. The current application follows very soon after my decision delivered on 30 June 2008, the reasons for which are recorded at [2008] FamCA 519. I made some 33 orders in relation to the establishment and the implementation of the children's rights of access to the mother which I was satisfied ought to include the children spending time with her in Sweden. It appears to be conceded by the father that the mother has substantially complied with all preconditions for her to spend time with the children in September-October 2008 in Sweden. There are some minor issues that he brings to light, including that the mother has provided a residential telephone number which he says relates to a telephone service in another area code. Second, the mother’s letter to the boys advising that she would return them to Australia was not date-specific when it could have been. Third, the mother was taking an extra day, making the boys’ trip to Sweden of 29 days duration instead of the 28 days provided in the Order. I think it is fair to say that none of those issues are insurmountable, nor in the father's mind, represent a reason that the children should not be going to Sweden.

4. The father's present application initiating proceedings is based on the fact that in March and April of 2008, the mother made allegations to the appropriate authorities in Victoria that both children had been sexually abused by their paternal uncle.  The paternal uncle is married to the father's sister. 

5. The father has secured production of documents from Victoria Police.  I have briefly perused those documents this morning.  It appears that on 3 March 2008 the mother wrote to Victoria Police seeking, if possible, to make an anonymous report about F and E having been sexually abused by their paternal uncle.  She enclosed a number of documents from which it is apparent that she alleges the children were sexually abused in 2002 and 2004 and dates in between.  It also appears that those allegations were re-stated in September 2007 to authorities in Australia.  By her letter dated 3 March 2008, she re-stated them again.

6. As best I understand the situation, these allegations of sexual abuse were current at the time of contested proceedings about the children in Sweden and were not found by that court to be substantiated.  The allegations were also notified to the police and child protection authorities in South Australia in September 2004 and, when investigated, not found to be substantiated.  The mother complains of acts of gross depravity being perpetrated on the children. They include detailed allegations of the boys having reported to the mother that the paternal uncle forces them to perform oral sex on him including each of them being required to put their tongue into his anus, being choked, nearly drowning and that this and other aberrant behavior being condoned and facilitated by the maternal aunt (the father’s sister).  There are further details which place the allegations on the bizarre side of depravity.

7. The father's new application appears to be based on two matters.  First, if the children are permitted to spend time with the mother in Sweden, she may well seek to discuss or investigate her allegations with or through the boys and could endeavour to retain them in Sweden for that purpose.  Second, that the information forwarded by the mother to Victoria Police in support of her report shows, in his contention, that the mother is not of a fit mental state to care for the children or for the children to be exposed to her on an unsupervised basis.  That is merely my summation of what I understand the father’s case to be.  He is not to be limited by my description.

8. Previous allegations of sexual abuse were touched on in my decision of 30 June 2008. In my reasons for judgment, I said[2]

   [2] paragraphs 175 to 183 inclusive

   “The second of the primary considerations mirrors s 60B(b) of the Act and recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.  This factor also requires a prospective evaluation.  As such, I must assess the future risk of exposure by [F] and [E] to physical or psychological harm and to formulate orders which protect [F] and [E] from any such harm or aspects of it. 

   The term, ‘abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’[3] or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person.[4].  ‘Family violence’, however, is given a broader definition as actual or threatened conduct toward another person, their family or their property, which causes reasonable fear or apprehension for their safety and wellbeing.[5]  A notation to the definition in the legislation adds that the standard for such reasonable fear or apprehension is that of the reasonable person in those same circumstances. ‘Neglect’ is not defined in the Act.   

   A number of allegations of sexual abuse of the children were made by the mother.  These allegations pre dated separation and continued until the children relocated to Australia.  The welfare agencies in Sweden reported before the Swedish District Court that the allegations could not be substantiated.

   In his affidavit of 16 October, 2007 the father refers to the history of the allegations made by the mother regarding sexual abuse of [the children]. Annexed to that affidavit is a welfare report from Sweden; a letter from the mother to the Ministry of Foreign Affairs dated 5 December, 2005 alleging the father is ‘sick’ and ‘consumes psychopharmacological drugs’; and a letter to the principal of [G] Primary school in Adelaide, South Australia, dated 17 November, 2004 alleging sexual abuse.

   Mr [K] gave evidence of the damaging nature of these allegations on the basis that they are unfounded.  It was his opinion that the children had been through an incredible amount since February 2003.  The impact of the conflict between the parents on the children has been significant.  It would be, in his view, in the children’s best interests in the short and long term, for this conflict to cease and for the children to get into an environment where it is ‘consistent with predictability’.

   Mr [K’s] expressed a view that it is in the children’s interests that the past history is not resurrected in any shape or form by either parent.  That includes, in his view, the sexual abuse allegations, the separation issues, the issues in terms of the current proceedings in the court. He was of the opinion that it would be important that the children are given an opportunity to live in a safe environment where they can be children rather than taking responsibility for what is happening in the parents’ world.  I accept that evidence.  I am satisfied that Sweden and Australia each have authorities appropriately charged with the protection of children. 

   There was no evidence before me at the trial that the mother had spoken of allegations of sexual abuse since the letter to the Swedish Ministry of Foreign Affairs, 13 December, 2005. Mr [K]  gave evidence that one of the boys indicates that she used (my emphasis) to talk about these things in the past, but now she generally just talks about school and staying in Sweden.

   It is not the father’s case that the mother’s right of access be refused because she will continue to make allegations of sexual abuse. Neither is it the father’s case that the abuse allegations are continuing. The independent children’s lawyer submits that the mother may have ceased making allegations of sexual abuse against the father, but is more concerned about past allegations as being relevant to her likelihood of retention of the children in Sweden.

   In the present case the sexual abuse allegations are an element of past conflict and do not feature in the current conflict nor require analysis in these proceedings.”

   [3] s 4(a) Family Law Act 1975 (Cth).

   [4] s 4(b) Family Law Act 1975 (Cth).

   [5] s 4 Family Law Act 1975 (Cth).

9. The sexual abuse allegations or the implications of the mother making further sexual abuse allegations which were not substantiated were not matters that I took into account when making my decision.  At first blush it might be more concerning to the father that the mother seeks to adumbrate historical sexual abuse allegations, which were current at the time of contested parenting proceedings in Sweden and then subsequently investigated in South Australia, rather new allegations based on new observations or reports from the children.

10. If the father is to be permitted to bring further parenting proceedings so soon after a contested hearing has been concluded, he must satisfy the court that new proceedings are warranted.  If that were not the case, proceedings could be brought interminably.  Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes.  However, litigation is costly in emotional and financial terms and can have the effect of standing in the way of parties parenting children effectively.  The court balances these competing considerations by imposing a threshold test.

11. In the case of Bolitho v Cohen, is (2005) FamCA 458, the Full Court of the Family Court made the following comments:-

    44.In King v Finneran, a case decided after the Family Law Reform Act 1995 (Cth), Collier J, when discussing the nature of the change required to warrant further consideration of a fresh application at 88,368, said:

    “[…]The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.”  

    45.We agree with and adopt the principles espoused by Collier J in King v Finneran set out above.

12. With respect, I agree. I am mindful of how significant the new fact or circumstance has to be in order to permit fresh proceedings such as these.  

13. Today the father represents himself and the only other appearance is the State Central Authority by Ms Stoikovska of Counsel.  The State Central Authority were aware of the hearing today because, when my chambers was notified that this matter had come into the Registry and required to be listed for an application to vary or stay my earlier orders, it was specified that the State Central Authority ought to have some notice of the application.

14. The mother is named as the only respondent in the present application.  It appears from documents on the file, including an acknowledgment of service, that the mother was served with the father's application and affidavit in support on 7 August 2008.  She does not appear today.  She was called at the door of the court and there was no response.  For reasons which will become apparent, it would be improper to deal with the father’s application as if it were unopposed.  Likewise, I make no ruling today on the threshold issue of change of circumstances because it has not formally been raised for my consideration.

15. I am informed that the mother is due to arrive in Australia on 30 August 2008, which is tomorrow week.  It is imperative to ascertain who will represent the mother and/or who will have conduct of the proceedings on her behalf.  It may be that it is a matter that she will wish to make a separate application to the appropriate authorities in Sweden to be transmitted to the Australian Central Authority, as was her earlier application in relation to access. 

16. I propose to outline briefly a history of the matter as I understand it, having heard from the State Central Authority and from the father.

17. As indicated, my decision was made on 30 June 2008 and the September-October holidays this year were to be the first time that the children were to spend time with their mother in Sweden.  The father filed his application, which inter alia seeks a stay of the orders about the children going to Sweden, on 30 July 2008. 

18. On 6 August 2008 the mother wrote to the solicitors for the State Central Authority, forwarding correspondence previously sent to the father confirming that she would arrive in Australia on 30 August 2008; that she wanted to spend some time with the children in Australia, to visit their school and to take them to a recreational park called Luna Park in St Kilda.  She advised the father that she proposed to leave Australia with the children on Wednesday, 10 September 2008 and bring them back on 10 October 2008.  Included with that correspondence were some of the matters that she was required to attend to as preconditions of spending time with the children outside Australia.

19. On 7 August 2008 the mother contacted the solicitors for the State Central Authority further and advised that she had received 32 pages of documents from the Family Court of Australia.  She advised the Victorian Government Solicitor that she held non‑refundable tickets for the children and herself to travel back to Sweden in September-October, and she said words to the effect of, "I think that I will need a lawyer in Australia for this new case.  Maybe I should contact International Social Service.  Can you give me some advice about what to do?"

20. I am informed that on the same day the solicitors for the State Central Authority responded to the mother, saying that they had not been formally served with the father's application but had obtained a copy from the court.  They queried who were the relevant parties to the application and precisely what the nature of the application was.  The mother was informed:

    In relation to your request for advice, we cannot provide you with any advice.  We act on behalf of the State Central Authority .. I suggest that you direct any queries to the Swedish Central Authority, who might forward them on to the Commonwealth Central Authority (Australia) for appropriate response.  In relation to whether you are required to obtain a lawyer, if you consider that you need a lawyer you may want to call the Law Institute of Victoria Family Law Section (phone number provided).  They will be able to refer you to a number of firms .. For your information, we have been instructed by the State Central Authority to appear on their behalf on the mention on 22 August 2008.

21. It is because the mother has had the above dialogue with the lawyers for the State Central Authority, from which it is apparent that she expects to participate in these proceedings, that I consider it inappropriate to determine the case today in her absence and as if it is unopposed.

22. It appears that on or about 10 August 2008 the father contacted the mother, querying why he was not provided with copies of the children's tickets and querying why the mother had made reservations which meant that the children would be gone from Australia for 29 days as opposed to the 28 days provided for in the Order of 30 June 2008.  The mother's response, which was forwarded to the State Central Authority, did not deal with the extension of the single day, and appears to have been her pursuing her previous inquiries in relation to Luna Park and seeing the children whilst she was here prior to them leaving for Sweden.

23. I am informed by counsel for the State Central Authority that on 20 August 2008 they received a letter from the mother which was titled as an affidavit but doesn't appear to be sworn.  In it, she raises a number of factual matters.  That document has not been tendered and it is not filed.  However, in hearing from counsel a brief summary of what it contains, it does appear that the mother raised some surprise or query as to why the children were still living with the father and she refers to the paternal uncle, the father’s brother in law, as being a person against whom allegations have been made of sexual abuse of the children.

1. The father informs me that his case could involve calling at least four witnesses.  I suspect it is more like five.  The father has nominated a member of Victoria Police called Senior Constable D, himself, the writer of a family report (if one is ordered), a psychiatrist or other appropriately qualified person who may prepare a psychiatric or mental state assessment of the mother and the father.  It occurs to me that the father may also wish to call his brother‑in‑law, the paternal uncle, if not his sister as well.

2. Of course, the State Central Authority does not even know whether they will continue to participate in these proceedings.  In fact, they come to court today saying that they seek some guidance from the court as to how long their involvement in the proceedings must be.  Well, that guidance isn't for this court to give.  However, I would make the following observations about the nature of these new proceedings. 

3. The event upon which the father bases the application is the mother's complaint to the police on 3 March 2008 which resulted in the children being interviewed at their school by police officers in the presence of their teacher.  The teacher’s attendance was entirely within accepted police protocols but would likely have added to the significance of the event in the lives of the children.  That interview occurred on 14 April 2008 which was after the hearing had concluded, the last submissions were filed but prior to me delivering my decision and making orders.

4. Had the father been represented when the school interview took place, he may well have been advised that the mother's complaint and its consequences constituted facts of which the Court ought to be informed before judgment was delivered.  At that point, it would have been appropriate for an application to have been made on his behalf to re-open his case so that he could lead that evidence.  That is one course the father could have adopted.  He didn’t.  He was by that stage a self representing litigant.  Lawyers would be circumspect about re-opening a case, I do not expect that a litigant in person would readily identify that is what was required much less to know how to go about doing so.

5. Another observation is that, when I delivered my decision on 30 June 2008, the father could have appealed and sought, on appeal, to adduce fresh evidence which was the mother's complaint.  He cannot now do that, without leave, because the period of time within which he could have filed a notice of appeal has now expired.  It expired at the end of last month.  It does appear that the father turned his mind in some respects to an appeal  I infer this much from paragraph 6 of the father's affidavit sworn on 28 July 2008, in which he deposes:

   “I also respectfully submit that I do not oppose the orders made by the Honourable Bennett J in the matter between myself and the State Central Authority ... However, given the allegations of sexual assault against [the children] which resulted in the children being interviewed by the Victoria Police on 15 April 2008, I respectfully submit to the Family Court of Australia that there is a need to protect the children from further psychological harm.”

6. Now, had the father taken either of the two courses which I have outlined above, the State Central Authority would have continued to be a party to the proceedings in which the fact and consequences of the mother’s complaint of 3 March 2008 are to be examined.  The State Central Authority would have been a party to these proceedings in which the mother’s pursuit of sexual abuse allegations is assessed and I consider whether the new evidence requires that the order I pronounced on 30 June 2008 be changed.  It is because the father seeks to raise the fresh evidence by a new application in which he names the mother as the only respondent that the State Central Authority is not now a party.

7. The implementation of my Order of 30 June 2008 is still, in my view, under the purview of the 1980 Convention and the corresponding Family Law (Child Abduction Convention) Regulations 1986 as being orders sought or resisted in relation to the implementation and organisation of rights of access. However, ultimately it is not for me to say. It will be, I expect, a matter of whether the mother (previously the requesting parent) makes another application under the 1980 Convention. It would be, perhaps, too simplistic to assess the assistance which the central authorities could give as being assistance to the mother. It is really whether the central authorities will extend such assistance as may be sought by the mother to F and E. At the end of the day, it is F and E who will benefit most from the mother’s case being reasonably resourced and well presented.

8. It would clearly be in the interests of the children for whatever decision is going to be made about how the respondent will conduct her case, to be made as quickly as possible.  I leave this registry for a month's leave commencing 15 September 2008.  Between today and then my sitting time is entirely taken up with Magellan cases, which is a list of cases involving allegations of serious physical violence to children or sexual assault.  It is a rolling list.  There won't be any spare time or any clear days.  I will endeavor to have this matter dealt with in the ordinary course by another judge but, given our limited judicial resources at this stage, there is a distinct possibility that I will end up dealing with this matter in the afternoons, probably commencing at about 4.30 pm.  That is not particularly satisfactory, but my assessment of the matter is such that it would be more satisfactory than not dealing with the matter at all.

9. There is some agreement, I think, between the father and the State Central Authority that the matter should be listed promptly upon the mother's arrival in Australia.  I have suggested 4.30 pm on 1 September 2008 - that is, the Monday following her arrival in Australia on 30 August 2008.  Counsel for the State Central Authority responsibly said that if the mother is to conduct these proceedings herself she will need some short time to obtain legal advice.  Whilst I recognise that perspective as valid, I am loath to delay the initial hearing beyond 1 September even if that means that that date is effectively a wasted day and the matter can't proceed because the mother proposes to get legal advice that she doesn't then have.

10. One of the important things that will have to be decided as early as possible after the mother's arrival is what time the children spend with her.  The father is of the view that the mother's report to the police indicates that she is so unstable that it could not be in the children's best interests to have unsupervised time with her.  I am yet to hear those arguments, but I think they are arguments that will need to be ventilated earlier rather than later.

11. I will adjourn it to 1 September.  I will also provide that the father amend his application if he wants to by a certain date, and that the State Central Authority advise the court and the father immediately they are in a position to make some decision about whether or not they will continue to be involved on behalf of the mother.  I would expect that decision will follow on the mother being given an adequate opportunity to make a decision about whether she will make any further application to either the Central Authority in Sweden or the Australian Central Authority directly.

12. I will direct that a copy of these reasons be sent to the Manager of Child Dispute Services so that she can, by the adjourned date, be in a position to say what resources can be offered by way of a family report and the time frame within which those resources can be delivered.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  25 August 2008