SANDFORD & SANDFORD

[2015] FCCA 3068

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDFORD & SANDFORD [2015] FCCA 3068

Catchwords:
FAMILY LAW – Parenting dispute – parties both self-represented – affidavit and other material difficult to understand – father seeking to spend time with 5 and a half year old child who is strongly resistant – father refusing psychiatric assessment – Independent Children’s Lawyer proposal’s accepted.

Legislation:  

Family Law Act 1975, s.60CC

Applicant: MR SANDFORD

Respondent: MS SANDFORD

File Number: MLC 10976 of 2013

Judgment of: Judge Burchardt

Hearing date: 3 September 2015

Date of Last Submission: 3 September 2015

Delivered at: Melbourne

Delivered on: 2 December 2015

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: In person

Solicitors for the Respondent: Not applicable

Counsel for the Independent Children’s Lawyer: Ms Ebejer

Solicitors for the Independent Children’s Lawyer: Ebejer and Associates

ORDERS

1. The mother have sole parental responsibility for the child [X] born [omitted] 2010 (“[X]”). 

2. [X] live with her mother.

3. The father provide the mother with his mailing address and the mother provide the father with [X]’s school reports and regular photos of [X], at least four times a year. 

4. [X]’s name be removed from the airport watch list.

5. The mother provide the father with 14 days notice of any overseas travel she proposes that [X] undertake.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 10976 of 2013

MR SANDFORD

Applicant

And

MS SANDFORD

Respondent

REASONS FOR JUDGMENT

1. This is a curious parenting dispute in which, for reasons that hopefully will be self-evident, it is possible to give judgment in relatively short form.

2. The father’s initiating application was filed on 16 December 2013, and sought a watch list order as an interim matter, and an order that the child, [X], born [omitted] 2010, spend equal time with the parents, and that there be equal shared parental responsibility.

3. The father’s affidavit, filed contemporaneously, is difficult to follow.  Construed as best one can, it asserts the father’s involvement in the child’s life, a period of separation commencing 26 August 2012, and a period of time when the mother was in India (and possibly America).  The mother returned to India after one year, and sought that a watch list order be made. 

4. The mother’s response, filed 24 February 2014, sought the dismissal of the application and permission for overseas travel.

5. The affidavit, filed contemporaneously, (both parties were self-represented throughout) is once again not easy to follow.  It is replete with criticisms of the father’s conduct and in large part florid in its terms.

6. The father filed an affidavit in court on 11 March 2014.  Once again, it is not easy to construe.  It appears that the applicant was married to the respondent on [omitted] 2009 in [omitted].  The husband has been a citizen of Australia since 2008.  The mother obtained a spouse visa as a result of the marriage.  According to the affidavit, she achieved permanent residency in 2011.  It is clear from the materials that there is a dispute about child support.  The affidavit runs to some 18 pages and constitutes a detailed engagement with the wife’s affidavit.  It is sufficient to say that it is wholly self-exculpatory and accusatory of the mother. 

7. On 15 July 2014, the father filed an application in a case.  This sought that the father spend time with the child.

8. The father’s affidavit in support of the application is once again difficult to understand.  It takes issue with court orders made on

   
   

   11 March 2014 in terms that are difficult to construe.  What is apparent, however, is that the applicant father was saying he had not seen his daughter for six months.  It is apparent from the affidavit that there are ancillary proceedings in India.

9. The father filed a further fairly short affidavit on 7 October 2014.  It asserts that the respondent, after obtaining permanent residency in Australia, left for India with the child on 28 August 2012.  On

   
   

   30 November 2012, she “filed Domestic Violence cases on my entire family members with whom she has never stay during our marriage life”. 

10. It seems clear that there have been court proceedings in India.

11. The affidavit continues by asserting that on 1 May 2013 the respondent came to Australia and then left with the child for the United States.  The applicant said that having heard this, he suffered a stroke and was in ICU for a month (something referred to in his earlier affidavit material).

12. The father deposed the mother filed for an Intervention Order against him on 4 October 2013, and thereafter removed all household properties.  The affidavit goes on to say:

    She is mentally touring[sic] my entire family since last two years.  She is looking for more benefit in terms of financial and mental torture on us.  I have waited for her for more than two years.  But she is leaving with other home in Melbourne.  There is fair reason to believe that she wants more and more financial and mental strain on me.  She is not interested in marriage life. 

13. The mother filed a further affidavit on 25 October 2014.  This goes as close as either of the parties have come to giving a coherent narrative.  In essence, it suggests a history of marital discord from, at the very least, the time of the birth of the child, and asserts violence on the part of the father to the mother.  It suggests that separation took place in August 2012, but I note that in September 2013 the child was in the United States with the mother’s parents.  In essence, it complains of the likelihood of domestic violence on the part of the father. 

14. The only other affidavit filed was filed in court at the hearing of the matter on 3 September 2015.  In substance, it is more in the nature of a set of submissions.  The essence of it is that the mother has prevented the father from having a relationship with the child.

15. The only other affidavit filed in the matter is an affidavit of Ms H, filed 28 August 2015.  Ms H is a social worker who filed her affidavit at the request of the Independent Children’s Lawyer, collating the supervisors’ notes of supervised visits.  It should be noted that there were three scheduled visits in September and October 2014, but only that on 13 September 2014 transpired.  The notes of the meeting dated 13 September 2014 show that the child did not know who the father was.  Following some relatively positive interaction, the child became distressed and called for her mother.  The visit ended accordingly.  On a further visit on 27 September 2014 the child refused to see her father and was distressed.

16. On the third meeting on 11 October 2014, once again the child refused to be with her father.

17. Both parties remained self-represented at trial, and the trial had all the sort of forensic difficulties that often obtain with unrepresented litigants.  The evidence given by the parties was mutually acrimonious and accusative, and unhelpful. 

18. When the matter was before Court, Mr Sandford made an opening submission in which he said that the mother and child ran away to India in August 2012, and he followed in November 2012.  The mother had filed three cases in respect of maintenance and then filed an Intervention Order when she returned to Australia.  He said he had only seen the child for 45 minutes in two years, and she did not know who he was.

19. He said, if I understood him correctly (and he was not altogether easy to understand), that the parties should enrol in Berry Street and he should see his child periodically.

20. Mr Sandford adopted his affidavits as true and correct.  When cross‑examined by the wife (who was representing herself) about why he had not provided a psychiatric assessment, his answers were evasive and unresponsive.  He said it had not been necessary to undergo an assessment. 

21. When it was put to him that he had, in fact, taken the mother and child to the airport in 2012, he admitted that this was so.  He said that they had lied to him and made maintenance applications in Australia. 

22. It then emerged that the father had clearly breached the Intervention Order taken out against him.  He said it was an obligation on him as a father to speak with his wife.

23. The mother put it to him that she had showed the child photographs of him before the visit at Berry Street and tried to be positive.

24. In response, the answers were rambling and unresponsive to the questions put.  He said that the mother had done her best, but the child had not spent any time with him.  He referred to the Berry Street report.

25. When cross‑examined by the Independent Children’s Lawyer about why he had not complied with an order dated 11 March 2014 to attend upon Ms T, psychologist, his explanation was unsatisfactory.  He said he could not recall and could not afford any sessions.

26. He was then taken to the order of 29 July 2014 which required him to attend upon a psychiatrist for a report.  The answers, once again, were unresponsive, but it is clear he did not attend.

27. In what was, effectively, re‑examination, the father ranted.  He said there had been no violence by him.  He said once the mother got citizenship, three months later she went to India.  A psychiatric assessment was not useful, and the child did not know her father.

28. The mother adopted her affidavits as true and correct.  Under cross‑examination by the father, she maintained that her allegations of violence were true.  She said she had tried to sort things out with the father but things had not worked.  When it was put by the father that if he did not see the child, he would not stay in Australia and, if this was so, would the mother withdraw the applications in India, the mother said she would do so.

29. Under cross‑examination by the Independent Children’s Lawyer, the mother confirmed that she had attended Berry Street and complied with the order to do so.

30. The Independent Children’s Lawyer’s submission was that the matter had been running since 16 December 2013.  Orders had been made in an attempt to reintroduce the father to the child, but he had not attended either on a psychiatrist or psychologist.  She submitted that there were a lot of other family issues rather than focus on the child.  She submitted that it was inappropriate for the father to spend time with the child as he had not demonstrated that he was child‑focused.  The report from Berry Street showed the father discussing property issues.

31. In the circumstances, it is most appropriate to note the following from the case outline filed by the Independent Children’s Lawyer.

32. The parents separated when the child was two years old, in August 2012, and the only time the child has spent with the father has been at the Berry Street Children’s Contact Centre Service on 13 September 2014.  I have already referred to this visit, and it did not proceed very well. 

33. The mother has alleged that throughout the relationship the father would become angry with the child and shout at her.  There are allegations of family violence.

34. At the recommendation of the Independent Children’s Lawyer, the father was ordered to undergo a psychiatric assessment, but Victoria Legal Aid refused to fund the report.  The father was advised to pay for the assessment privately, but refused to do so, on the basis that he would need the funds for his car registration, medical expenses, and potential flights interstate to attend job interviews.

35. As the Independent Children’s Lawyer case outline asserts at page 3:

    The Father has only had one opportunity to spend time with the child since separation and there has been no assessment of his parenting capacity or mental health and the need to protect the child from the risk of harm overrides the child’s right to have a relationship with both parents.  No time should occur between the child and the Father until such time as the Father’s mental health is assessed and how his mental health may impact the child.

36. It is clear, on any view, the child has lived with the mother since birth.  At one stage it appears that the father said he was living interstate, and it is even now not entirely clear whether that is so.

37. Put shortly, the Independent Children’s Lawyer submitted that the father had not presented as child-focused. He had not undergone a psychiatric assessment, which was vital in the circumstances. On any view, he has had very little involvement, for whatever reason, in the child’s life and the child is now five years old. On any view, a reintroductory process would be necessary, but as the Independent Children’s Lawyer correctly submits, this is inappropriate in circumstances where the father’s psychiatric health is in issue (and his affidavits rather, I am afraid, speak for themselves) and he will not address the matter.

38. As the Independent Children’s Lawyer’s submissions state at page 7:

    The Father has had very little involvement in this young child’s life however the child is only 5 and it should be left open for the child to be able to have a relationship with her Father as she gets older.  The difficulty lies in that there is no trust or goodwill between the parties, the Father appears to be living interstate, the child is young, the Mother has made allegations that the Father has been physically and verbally abusive towards the child and alleges that he has exposed the child to family violence and she is concerned about the child in the Father’s care.  There has been no assessment of the Father to assess these concerns, and the child refused to spend time with the Father after one visit at the children’s contact centre.  An order for the child to spend time with the Father has the potential to result in further proceedings due to the likely difficulty the parties will have in implementing such orders but so to would an order for sole parental responsibility.  The combination of factors present in this case (as described above) has the potential to lead to the institution of further proceedings however, the paramount consideration to be taken into account is the best interests of [X] and at this time that may be that the Mother have sole parental responsibility.  The Mother should provide the Father with regular updates including photos and school reports.  If the Mother plans to travel with the child overseas she should provide the Father with travel details at least 14 days prior to travel.  The Mother should be permitted to travel with the child and therefore the watch list should be removed.

39. I said at the commencement of these reasons that this was an unusual parenting dispute and that the reasons for judgment would be short.  That is because, in the circumstances described, it is immediately and overwhelmingly apparent that the orders sought by the Independent Children’s Lawyer are appropriate.

40. The case outline of the Independent Children’s Lawyer traverses the s.60CC matters, and I refer to those submissions without setting them out seriatim. The bottom line is that the child scarcely knows who her father is, if she knows at all. She has scarcely seen him during any period of time she would remember. He has not been, as the Independent Children’s Lawyer submitted in oral submissions, child-focused, and the matters he raised before the court had but little, if anything, to do with the child, and more to do with the interfamilial disputation in India.

41. In the circumstances, it is immediately apparent that the submissions of the Independent Children’s Lawyer and wholly correct, and it follows that I propose to make the orders that the Independent Children’s Lawyer seeks.  I have prepared orders to give effect to this conclusion. 

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  2 December 2015