Wadmal and Amrita

[2008] FamCA 595

FAMILY COURT OF AUSTRALIA

WADMAL & AMRITA [2008] FamCA 595

FAMILY LAW  -  CHILDREN – With whom a child spends time - directions for trial  -  unsuitability of LAT process

Family Law Act 1975 (Cth)
Family Law Rules 2004

APPLICANT: Mr Wadmal

RESPONDENT: Ms Amrita

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11820 of 2007

DATE DELIVERED: 11 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 11 July 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr N.M. Eidelson

SOLICITOR FOR THE HUSBAND: Robert Halliday & Associates

COUNSEL FOR THE WIFE: Ms S.C. Dowler

SOLICITOR FOR THE RESPONDENT: Ryan Carlisle Thomas

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms H.M. Gordon

INDEPENDENT CHILDREN’S LAWYER Goddard Elliott

Orders

1. That until further order the husband spend time with the child of the marriage, … born … June 2006, as follows:

   (a)on each Wednesday from 1 pm until 5 pm, commencing (subject to compliance with paragraph (3) hereof) on Wednesday 16 July 2008;

   (b)on each Saturday from 12 noon until 6 pm, commencing (subject to compliance with paragraph (3) hereof) on Sunday 20 July 2008.

2. That the husband’s time with the child pursuant to these orders be supervised by his mother, Mrs Z, and that Mrs Z be present during the whole of the time the husband spends with the child, including attendance at changeovers, provided that one of the husband’s adult sisters may supervise the husband’s attendance at changeovers on Wednesday in lieu of Mrs Z.

3. That by 4 pm on 15 July 2008 Mrs Z and each of the husband’s sisters who is to play supervisory role at changeovers on Wednesdays sign and file an Undertaking, in the usual form, in which each undertakes to diligently supervise the husband’s time with the child and to be present for the whole period of time to be supervised and the operation of paragraph (1) hereof is conditional upon compliance with this paragraph.

4. That the husband’s time with the child pursuant to these orders be spent at the paternal grandmother’s home and in the environs of her home.

5. That unless the parties and the Independent Children’s Lawyer agree to the contrary in writing, changeovers be outside the G Police Station.

6. That the Independent Children’s Lawyer be at liberty, in her absolute discretion, to contact the paternal grandmother and any of the husband’s sisters who may be supervising and discuss with them the nature and aim of the supervision ordered this day.

7. That the competing applications for final property orders be listed for trial at 10 am on 17 November 2008, marked as a four day case.

8. That each of the parties file and serve all affidavits on which he or she intends to rely by 4 pm on 17 October 2008.

9. That the parties and the Independent Children’s Lawyer have leave to issue subpoenae returnable on a Tuesday or Thursday at 9.30 am prior to 30 October 2008.

10. That all documents produced pursuant to subpoena presently kept at the Dandenong Registry of the Court be brought to the Melbourne Registry of the Court as soon as practicable.

11. That the reasons for judgment be transcribed and a copy made available to the parties.

12. That pursuant to s.65DA(2) and s. 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

(13) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

AND THE COURT NOTES:

A.The husband intends to file affidavits sworn or affirmed by him, his mother, and (possibly) two of his sisters.

B.       The wife intends to file affidavits sworn by herself and her father.

C.The Independent Children’s Lawyer intends at the trial to rely on evidence of Dr K, Ms D and Ms W.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11820 of 2007

MR WADMAL

Husband

And

MS AMRITA

Wife

REASONS FOR JUDGMENT

1. This case was listed today as the first day of what is commonly called a less adversarial trial.  For reasons expressed earlier, that procedure is not appropriate for the case.  This litigation commenced in the Federal Magistrates Court in September 2006.  A considerable body of evidence was before that court when it was transferred here on 16 August 2007.  It has been sitting in the pool of cases awaiting a hearing since that time, which is perilously close to a year.

2. Instead, a more flexible approach has been adopted.  The court has had the benefit of hearing from Ms W who, as part of the child responsive model, met with the parents and their daughter, who is two, in late June and early July.  Her report, in which she identified the significant issues, is before the court.  She is present and has given evidence on affirmation.

3. Insofar as it is necessary, I dispense with the requirements of Practice Direction No.2 of 2006 and the Family Law Rules2004.  The matter is not part-heard before me.  I have not sworn or affirmed the parties today.  I will make directions for a trial and I will determine an interim application.

4. Ms W has cogently defined the key issues in dispute as being the safety of the child in the care of her father, the extreme disparity in the accounts given by the parties and the impact of the parental conflict on the child.  Both parents expressed concern that the other would have the child circumcised.  Each denied he or she would do that, and asserted the other may.  In fact, an earlier order precludes that course and I cannot over-estimate the importance of compliance with that order and how seriously the court would take any breach of it. 

5. Ms W's recommendation is that the matter needs an urgent hearing and I will give directions for trial today.

6. Pursuant to orders made on 31 October 2006, the child was to see her father from 2:00 pm. to 4.00 pm. on two days a week.  A subsequent order, made on 6 March 2007, added a requirement that his time with the child be in the presence of his sister.  By agreement, the parties have since extended the time he spends with her to include four hours on a Wednesday between 1:00 pm. and 5:00 pm., and six hours on a Saturday between 12:00 noon and 6:00 pm. 

7. That regime stopped after the mother learned of an incident in which it is alleged the husband, armed with a piece of timber and a knife, forced entry into a home, in company with his sister, and assaulted another man.  At that point she unilaterally stopped contact.  She had previously deposed that the husband was a dangerous and violent man; it is her case that he has a seductive personality but is unable to be trusted, and likely to put the child at risk as a result of his intemperate behaviour.  The incident of which she was told cemented her fears.

8. For his part, the father has consistently denied the wife's allegations.  He denies that he has ever been violent to her; his position is that her allegations are the product of a delusional state.

9. The parties have both seen Dr K, who prepared detailed reports.  The bottom line is that a diagnosis is dependent upon fact-finding.  If the behaviour described by the mother were found to have occurred, it would indicate that the father had a psychopathic personality disorder and Dr K would have significant concerns about his time with the child.  If the behaviour did not occur, he would not have any concerns about other psychiatric conditions.  Similarly, while the mother presented as not having a psychiatric condition, if it were found she had invented these behaviours, or was delusional about them, it would impact on her parental capacity.  Those issues cannot be determined until the trial.

10. The father seeks the resumption, at the very least, of the time he had with the child earlier.  Whilst he opposes the use of the word "supervision", he accepts the reality that the court might, in the interim, order that his contact be in the presence of his mother, or one of his four adult sisters. 

11. The mother’s position is that if contact is to be resumed between now and the hearing, it should be at a professionally supervised contact centre or supervised by a professional supervisor.  In her submission, the risk is too considerable for anything other than formal supervision.  She has no faith in the capacity of his mother or sisters to contain his behaviour or insist that he comply with an order; it is her case that they are frightened of him.

12. The independent children's lawyer supports the reintroduction of time much as it was, but does submit that in order to ensure the child's protection in the interim, there should be some supervision.  At the suggestion of Ms W I have spoken to Mrs Z, the husband's mother, who has indicated that she would be prepared to supervise at the specified times.  She could be involved in collection and return on a Saturday, but her family daycare obligations on Wednesday would make that difficult.  To the best of her belief, one of her daughters could assist on those days.  She understands what is required of a supervisor, and she understands that were the court to find that contact had not been supervised as ordered, that would not only be a significant matter in terms of her undertaking but could have very significantly adverse ramifications on the outcome of her son's final case.

13. I do propose to reinstate contact pending the final hearing. 

14. About the law I say only this.  The provisions relating to children rest on two premises.  The first is the importance of maintaining as meaningful a relationship as possible between a child and both of his or her parents.  The second is the importance of protecting children from physical or psychological harm.  What the child needs is a consistent, stable and secure regime in which the court can be confident she will be comfortable and safe, pending a determination of the significant factual issues in dispute. 

15. Neither party should think that the issues have been pre-judged by the orders I make today.  They have not.  Today, on limited material, the court has assessed risk and made orders which put child safety and wellbeing at the forefront, until all outstanding matters can be determined.

16. I take into account Ms W's evidence of the child's primary attachment to her mother, the significant attachment she showed to her father and, in particular, the significant tension on the child produced by moving between her parents.  That caused her very considerable distress.  In the long term such tension has a profound capacity to impact on her psychological wellbeing.

17. I do propose to order that the father’s time be supervised by the father's mother.  I will order that the father be accompanied (when he collects and returns the child) by his mother on the Saturday, and by one of his adult sisters on the Wednesday.  His time is to be supervised by the grandmother, save that one of the sisters will be supervising transport on the Wednesday.  Contact is to be at the grandmother's home.  As I made clear when talking to the grandmother, the child can move from her home into the neighborhood, but the grandmother will need, for example, to go with the child to the park or to the shops, if the father is present.

18. I will set in place a trial regime.  I note at this stage that the father proposes calling his mother and, possibly, one or two sisters; the mother proposes calling her father; and the independent children's lawyer proposes calling Dr K, Ms. D and Ms W. 

19. I do not propose to order an updated psychiatric report;  in my view, that would not be useful.  The court needs to determine facts in issue and consider Dr. K’s evidence in the light of those findings.  If the independent children's lawyer, or anybody else, wants to call evidence in relation to the continuing police investigation, I would be comfortable about that.

20. Contact will recommence next Wednesday, provided undertakings have been filed by each of the father's mother and such of his sisters as may be involved in travel on Wednesdays.  It is the grandmother who has responsibility for the supervision once at the home;  it is she who must be present, not one of his sisters.  I will grant general liberty to apply on application to my associate and on notice to each other.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown AM.

Associate:  …

Date:  …