Raycliff and Nilssen - [2012] FMCAfam 901

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAYCLIFF & NILSSEN

[2012] FMCAfam 901

FAMILY LAW – Arrangements for care of child aged five years pending final hearing – allegations of family violence by mother – nature of family violence – mother seeks time between child and father be professionally supervised – extensive delay before parties can be accepted into program of professional supervision – meaningful relationship – best interests.

Family Law Act 1975 (Cth), ss.4, 60B, 60CC, 61DA, 67J

In The Marriage of Patsalou (1994) 18 Fam LR 426
Amador & Amador (2009) 43 Fam LR 268

Applicant:

MR RAYCLIFF

Respondent:

MS NILSSEN

File Number:

ADC 1801 of 2012

Judgment of:

Brown FM

Hearing date:

18 July 2012

Date of Last Submission:

18 July 2012

Delivered at:

Adelaide

Delivered on:

18 July 2012

REPRESENTATION

Counsel for the Applicant:

Ms Poetsch

Solicitors for the Applicant:

Adelaide Lawyers

Counsel for the Respondent:

Ms Dickson

Solicitors for the Respondent:

Ann Josephson Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The child of the marriage X born (omitted) 2007 live with the mother.
The father spend time with the child on each Saturday commencing 21 July 2012 beween 9:30am and 3:30pm in the presence of Ms F subject to the following conditions:
(a)The time is to take place, other than the travelling time, at the home of Ms F and subject to her supervision; and
(b)Ms F is to oversee the exchange of the child on each occasion which is to take place in the foyer of the (omitted) Police Station.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 15 August 2012 at 9:15am, to discuss the care, welfare and development of the child X born (omitted) 2007 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on (omitted) to confirm their attendance.
Ms F is to file an affidavit setting out her evidence in respect of her experience of what happened with the time between the father and the child which takes place pursuant to order 2 hereof by no later than 13 August 2012.
Within seven (7) days the parties do all things necessary to enrol at the (omitted) Children's Contact Centre and to assess their suitability to take part in the supervised access program.
The orders made by consent on 27 June 2012 continue.
Further consideration of the matter is adjourned to 17 August 2012 at 10:00am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 1801 of 2012

MR RAYCLIFF

Applicant

And

MS NILSSEN

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered ex tempore immediately following the interim hearing concerned. Given the controversy arising in the matter, it is appropriate that the reasons be transcribed and released to each of the parties. Grammatical errors and errors of expression have been corrected and an attempt made to make the orally delivered reasons amenable to being read.
This afternoon, I have to deal with a difficult interim children’s matter. The applicant in the proceedings is Mr Raycliff. The respondent is Ms Nilssen. The parties, to whom I will refer, respectively, as the father and the mother, are the parents of X, who was born on (omitted) 2007.
The father commenced these proceedings on 15 May 2012. At this interim stage, he seeks orders that would see X being delivered up to him and living with him until there can be a more exhaustive hearing of all the relevant evidence. Failing the delivery of the child to him, he seeks that a recovery order issue which would direct, essentially, police officers to go and seek out the child and deliver her to him.
The father’s application first came before the court on 27 June 2012. It was supported by an affidavit of the father himself and also by several other affidavits from individuals who know the father well and who depose to his good character and close involvement with X.
It was the father’s position that, when he commenced these proceedings, he did not know where the mother and X were living. For that reason he sought that a Commonwealth Information Order[1] be made, which would direct relevant officers of Centrelink or the Child Support Agency to provide the court with information, held by those agencies, as to where the mother and child were living.
[1] See Family Law Act at section 67J
It was the import of the father’s case that the mother was hiding X from him and this was not in her best interests, given her close relationship with him. At the time of his application, he had not seen the child since late April. He was becoming increasingly desperate about this state of affairs, when his application came to court.
The mother had not filed answering material when the matter came to court for the first time on 27 June 2012. She did, it seems, have knowledge of the proceedings but my recollection is that she had not been formally served. At any event, her counsel, Ms Dickson, sought the adjournment of the proceedings so that answering material could be filed on her behalf. That answering material has been filed fairly recently.
At the interim stage, it is the mother’s position that X should live with her and she should have sole parental responsibility for her. She proposes that the parties register with the children’s contact service at (omitted) and that, thereafter, the father spend six sessions of supervised time with the child each of two hours in duration and that there be a report be compiled by the supervisor concerned to how that time between father and child went.
Accordingly, from that brief synopsis of the parties’ respective positions it is clear, I think, that there is a gulf between them regarding what is the appropriate outcome in this matter. In order to explain why there is such a gulf, it is necessary to briefly outline each of the parties’ positions at this stage.
The father is 61 years of age. He was born in (country omitted) but has lived in this country for the greater proportion of his life, having arrived in this country when he was 18 years of age in 1970. By occupation he is self-employed a (omitted). He works from home in (omitted), in the (omitted).
At this property, which until recently was both parties’ family home, he also runs some (omitted). The father has been involved with the (omitted), in particular, with the (omitted) for the last 22 years. Mr Raycliff and those associated with him, depose as to his close relationship with the close knit community of the (omitted).
The mother is 30 years of age. She was born in (country omitted). The parties met in (country omitted) when the father was on holiday and they began a relationship shortly afterwards, with the father regularly visiting the mother in (country omitted), both before and after their marriage and completion of immigration formalities.
The parties married in (country omitted) on (omitted) 2003. It seems to be the case that the mother came to this country in 2007 and X was born in South Australia shortly afterwards on (omitted) 2007. The mother’s position is that she speaks limited English.
It is common ground between the parties, I think, that the mother comes from a rural background in (country omitted). The parties have very different views about the nature of their relationship, during their marriage of around nine years. This is the central evidentiary issue arising between the parties at this stage.
The mother asserts that the father was controlling of her during the marriage and constantly denigrated her. In addition she says that when she began to work (occupation omitted) near to where the parties lived, the father took her wages and was controlling of her finances.
It is her position that, essentially, there is a power imbalance between the parties, arising from their very different backgrounds. The father, on the one hand, being significantly older than she is and being a person who speaks English either as his first language or very well indeed. In contrast to herself she would characterise the father as a person who is familiar with Australian cultural mores and values; who has significant skills and financial resources; and who is associated with an organisation, in the form of the (omitted), which is authoritative.
Whereas, she, on the other hand, is a fairly recent arrival in this country, who does not speak English very well and has no skills to speak of and finds herself in an environment which is largely culturally foreign to her and does not easily provide her with any means of obtaining financial autonomy.
The mother asserts that she was unhappy in the parties’ marriage and determined that she had no alternative but to leave it. She asserts that when she raised this issue with the father and asked him what would happen if she did leave the relationship, he told her that he would get a gun, put it to her head and kill her. She says that she believed that threat, particularly, as the father has a (omitted) background.
It is, I think, common ground between the parties that the mother, unilaterally, left the home with X and did not tell the father where she was going. It is her evidence that she has been living in a refuge and wishes her current address to be kept secret. She has deposed that the workers at the refuge have found her accommodation, which is secure, in the (omitted) suburbs of Adelaide.
With the assistance of both the police and workers from the refuge, the mother obtained an interim intervention order at the Mt Barker Magistrates Court against the father. Such an order was made on 4 April 2012. It is Mr Raycliff’s evidence that he agreed to the order, not because he accepted that he had done anything wrong or because the mother had any reason to fear him, but rather to put the mother’s mind at ease and do what he could to gain contact with his daughter.
The father has not formally responded to the mother’s allegations against him. However, it is the input of his affidavit material, and the thrust of the people who have supported him in his application by filing affidavits on his behalf, that he is not the violent and coercive person depicted in the mother’s answering affidavit. To the contrary, he is presented as a caring and compassionate person, who is well regarded in the community of (omitted).
There are other very significant disputes between the parties arising from their affidavit material. It is the father’s position that, although the mother was X’s primary carer, during the first year of her life, he was involved with bathing and putting her to bed each evening and was involved in overseeing her medical care.
Thereafter, he says he became more and more involved in the child’s care and, because he ran his business from the parties’ home, he was always available to care for her. He says that until X turned four, he and the mother provided relatively equal care for her, but from the age of four years onwards, he became more responsible for seeing to X’s day-to-day needs.
The father resolutely refutes any suggestion that he was controlling of the mother’s finances or was otherwise denigrating or coercive of her. Rather, he would say that the relationship between the parties was, to use his expression, “quite normal”, but one in which the parties did have occasional arguments, as most couples do.
He would assert, I think, that there is no evidence whatsoever of any physical violence between the parties and, certainly, no indication whatsoever that the child herself has been exposed to any significant, actual, physical violence. It is his case that the mother’s attitude towards him began to change late last year and he had her suspicions that she was involved with someone else.
Today, the mother has reiterated her position that the way forward in this matter is for there to be a process of professionally supervised time between father and child. However, I am informed by Ms Dickson that the waiting time for a slot at the (omitted) Children's Contact Centre is somewhere in the vicinity of three months. If that is right, and I have no reason to think it is not, that would mean a slot for the parties will only become available in October of this year.
As I say, it is common ground between the parties that the father has not engaged with the child, in any way whatsoever, since April of this year. So that would mean a period of time of approximately six months will potentially have passed between when the father last saw X and when the professional supervision can begin. That is a very significant period of time for a child of X’s age.
On the last occasion, the matter was in court, which was on 27 June, I recall that the adjournment of the matter, necessitated by the need of the mother to file her formal affidavit material, understandably, precipitated a significant emotional response in all concerned, particularly the father. I accept that Mr Raycliff is desperate to see X.
Fortunately, in these very difficult circumstances, the mother has a subsidiary position. She proposes that the father have some daytime contact with the child on either Saturday or Sunday. She proposes that the time take place at the home of a person by the name of Ms F. Ms F is a friend of the father and is also a person known to the mother.
Whether the mother regards her as a friend, I am not sure, but the mother concedes that she contacted Ms F, when she was wanting to raise some of her concerns, about the state of the parties’ marriage, with another person and seek some advice about what she should do. So I presume she has some trust in Ms F.
Ms F has provided an affidavit for the court, which has been filed on before of the father. It would seem to be the case that she has prepared this herself, although, I cannot be certain about that. The affidavit is addressed “To whom it may concern.”
What Ms F says in her affidavit, which is about two fairly densely printed pages long, can be summarised as follows: she knows both parties; she is aware that the mother was unhappy in the relationship; she expresses regret at the circumstances surrounding the parties’ separation; this separation resulted in the mother removing X from her kindergarten, without any prior consultation with the father and from his perspective essentially disappearing with her, which caused Mr Raycliff great distress.
Ms F says this of the father:
I have known Mr Raycliff for 30 years and have come to know him fairly well over that period of time. Mr Raycliff certainly has his faults. Mr Raycliff is not of Australian birth and has a different cultural background from me and has appeared chauvinistic to me at times. That being said, at no time has Mr Raycliff caused me to be concerned about unacceptable behaviour towards his wife or child. I judge him to be an honourable man. It is obvious he loves his family and is devastated by these developments.
In my assessment, this is not a completely unequivocal reference. It suggests to me that Ms F has some reservations about the father’s behaviour and attitude to women. On that basis, the mother puts forward Ms F as a person who has some objectivity regarding the parties’ situation. I also seems to be the case that she is willing to be an honest broker, between the parties, in what is obviously a very difficult situation.
This matter comes before me at the interim stage. What that means is that at this stage, I am not in the position to make findings of fact about what did or did not happen in the past between the parties. I cannot decide who of them is telling the truth at the moment.
Essentially, I am not in the position to make concluded findings of fact about who of the parties was X’s primary carer during their marriage and more importantly, perhaps, in the context of these proceedings make findings about what was the nature of the parties’ relationship.
In the context of the provisions relating to children in the Family Law Act this is likely to be a very a significant issue in the case. The question being was the parties’ relationship characterised by serious violence instituted by the father on the wife or was it a conventional relationship marked by normal ups and downs and commonplace disputes.
The appropriate stage to make findings about issues such as these is at the final hearing stage, when each party will, if necessary, give sworn evidence and will be cross-examined on oath about the truth or otherwise about what they say about both prior care arrangements for X and the nature of their relationship.
In addition, at the final hearing stage, I will almost certainly have an independent assessment of the needs of the child concerned, which assessment will have been prepared by a psychologist, who will have an opportunity to observe the child with each of her parents. Lawyers call these assessments family reports. Necessarily they take some time to prepare but are usually central pieces of evidence, at the final hearing stage.
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.

The mother’s case raises significant issues regarding family violence. It is her position that it is neither appropriate nor likely to be in X’s best interests for the presumption of equal shared parental responsibility to be applied in this case because of the serious evidence of family violence which she raises.
Given the structure of the Family Law Act the court is required to give close consideration to issues of family violence. The Family Law Act has recently been significantly amended as a result of the provisions of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.
The new legislation has changed the definition of family violence. The bulk of the new legislation came into effect on 7 June 2012. The legislature has determined that proceedings that were commenced prior to this date are to be determined under the legislation as it was prior to 7 June 2012. The father commenced these proceedings on 15 May 2012.
The definition of family violence, prior to 7 June 2012 was as follows:
“conduct, whether actual or threatened, by a person towards another or towards the property of a member of a person's family that causes that or any other member of the person's family reasonably to fear for or reasonably to be apprehensive about his or her wellbeing or safety.”
There is an objective standard contained within the definition. However, I think, if what the mother says the father said to her shortly prior to the parties separation is true – that a threat was made that she would be shot in the head – this is threatened conduct of a kind which is prima facie likely to satisfy the pre-7 June definition of family violence.
Family violence is defined by the legislation applicable after 7 June by the provision of section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Interestingly, the legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·An assault;
·Repeated derogatory taunts;
·Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member concerned.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.
It is, I think, the tenor of the mother’s case that the father’s conduct towards her is family violence of a coercive and controlling kind. It is her case that the father belittled her and controlled her finances. Her counsel submits that these are very important consideration, when the implicit power imbalances in the parties’ relationship are considered. However, as I say, for the purpose of these proceedings, the section 4AB definition is not the applicable definition.
However, I think it would be imprudent of me to disregard the submissions made on the mother’s behalf in the context of this difficult case, at this interim stage. At any rate, as I have already indicated, in my view, if the mother’s allegation of being threatened with a firearm is true, I think there is little doubt that that such conduct would satisfy both the former and the current definition of family violence.
I am required, as I say, to determine this matter under the legislation as it stood prior to 7 June 2012. The legislature does not distinguish between the two primary considerations. One is not given a position of pre-eminence over the other.
This is no longer the position under the current legislation, as it relates to case brought after 7 June 2012. The current position is that the court is required to give pre-eminence (or greater weight) to considerations relating to the need to protect children from being exposed to family violence over considerations relating to any benefits the child is likely to derive from having a meaningful relationship with both his or her parents [see section 60CC(2A)].
The difficulty in this case can be easily explained. As with many cases which arise at the interim stage, at a point of crisis in the family concerned, it relates to the tension between the two primary considerations set out in section 60CC(2).
Family violence, by its nature, is something that invariably occurs behind closed doors in the private confines of a family home. Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred.
In addition, it may be difficult for the person who is the victim of such behaviour to report it to those in authority. The victims of family violence may suffer a range of emotional responses and be in a wide variety of personal circumstances. They may feel frightened, they may be disadvantaged for social and economic reasons, they may feel disempowered by the nature of the relationship and, as such, are too frightened or too embarrassed to speak to someone about what has happened. Accordingly the independent verification of family violence is problematic in very many cases.
However, the structure of the Family Law Act, both prior to 7 June 2012 and obviously afterwards, is such that the court is required to closely consider issues to do with family violence. This is because family violence can have a very detrimental consequence for young children, both psychologically and physically.
Most obviously they may be directly injured by an episode of violence or frightened by it, particularly if they see one of their parents being hurt or intimidated. More subtly, children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child's parents are not appropriate psychological role models for children.[2]
[2] See In The Marriageof Patsalou (1994) 18 Fam LR 426
At this juncture, I am not in a position to determine definitively whether the father has behaved in an inappropriate manner towards the mother as she alleges. This does not absolve the court of its responsibility to deal with allegations of family violence stringently.[3]
[3] See Amador & Amador (2009) 43 Fam LR 268
However, I think it is clear from the affidavit material, untested though it is, that there is a significant imbalance in the power and resources of the parties. The mother does not speak English well. It is her case that she had no viable alternative other than to flee a violent home, where she was coerced and controlled by the father.
As I say, I am not in a position to make findings of fact about this allegation, but I cannot overlook it. In the context of this case, given the moment of these allegations, I have come to the conclusion that it would not be in X’s best interests for her to immediately be returned to the care of her father. In addition I do not think that the presumption of equal shared parental responsibility should be applied in the case.
It is the position that X has been in her mother’s sole care, albeit as a result of the mother’s unilateral action, for a period which is coming on for three or four months. This is a significant period of time. Children of the age of X require a degree of stability and continuity in arrangements for their care.
I think the child’s best option for stability at this stage is for her to remain in her mother’s care. However, I am concerned about the very significant interruption in the child’s relationship with her father, notwithstanding the discrepancies in the evidence of each of the parties concerning who of them was or was not the child’s main provider of care in the period immediately prior to the mother’s departure from the home.
It would seem to me likely that the child has a significant relationship with her father. How could it be otherwise given that father and child and indeed the mother lived in the same household for all of the child’s life until recently? I cannot overlook the benefits X is likely to derive from having a meaningful relationship with not only her mother but also her father.
There must be a balance struck between the two primary considerations. But, in reaching that balance, given the power imbalance issues arising between the parties, I think that I have to take a cautious approach, particularly given that at this stage the parties have no capacity to communicate with one another, do not trust one another and it is a case where the mother has made very significant allegations of violence against the father.
Given these considerations, it is too long to wait for a professional supervisor, before orders are made for the father to spend time with X. Something has to be done to reintroduce the father to the child, long before October.
But I have to be careful, I think, about being overly ambitious in what is obviously a difficult and conflicted situation, which has not only has issues to do with violence, but has a significant cultural overlay involved in it. For obvious reasons, not least the differential in age, it would seem to me that the parties are likely to have quite a different cultural orientation and background from one another.
For those reasons, I am going to make orders that will see X continuing to live with the mother. But I will also make orders which will see the father spending time with the child for approximately four Saturdays between 9:30 and 3:30, in the presence of Ms F and subject to her supervision.
I am told that Ms F is willing to be an honest broker. I have not heard that directly from her and I think it would be useful if I got some feedback from her as to how this arrangement works, particularly from the child’s perspective.
I think it is clear that the parties at this stage are not in a position to manage an exchange or handover of the child. There has to be an honest broker and Ms F is likely to be the best honest broker available.
I will also make orders directing the parties to enrol at the (omitted) Contact Centre to see if a professional handover place can be utilised sooner rather than later. I will also order that the parties attend a family dispute resolution conference.
I do not expect that conference to result in the parties reaching an easy agreement or anything like that, but I think it would be useful if I have some advice from a court consultant as to what the next step forward should be, particularly whether the child should be independently represented or whether there should be some urgent assessment of her psychological needs and level of development undertaken.
After this introductory period, the matter will return to court and I hope I will have some further evidence from Ms F as to how it all went. I will also have a report from the court consultant.
So for those reasons, I will make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 18 July 2012