AKBAR & AKBAR
[2017] FamCA 709
•14 September 2017
FAMILY COURT OF AUSTRALIA
| AKBAR & AKBAR | [2017] FamCA 709 |
| FAMILY LAW – CHILDREN – Best interests considerations – Where there are significant and serious allegations of family violence – Where the father denies the mother’s allegations as to family violence – Where objective evidence clearly supports the mother’s contentions as to family violence – Where the mother’s evidence is to be preferred over the father’s – Where the father does not acknowledge the mother’s anxiety or fear around him – Where the father did not see the child for two years post separation – Where the father has had only limited supervised time with the child during the proceedings – Where supervised time between the father and child ceased over 12 months ago – Where the mother would experience significant anxiety if the child were to spend time with the father – Where the child spending time with the father would likely lead to conflict and have a detrimental effect on the child’s psychological wellbeing – Where the Independent Children’s Lawyer proposes the child spend identification time with the father only or only communicate via gifts and cards – Where it is in the best interests of the child to spend no time with the father. FAMILY LAW – COSTS – Application for costs order by Independent Children’s Lawyer – Discussion of general principles – Where mother in receipt of legal aid – Where father in employment – Where no submission by father as to hardship – Where order made for father to pay one half of Independent Children’s Lawyer’s costs. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 117 |
| De Roma & De Roma [2013] FamCA 566 Stott & Holgar and Anor [2017] FamCAFC 152 |
| APPLICANT: | Mr Akbar |
| RESPONDENT: | Ms Akbar |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Samuel |
| FILE NUMBER: | PAC | 5797 | of | 2014 |
| DATE DELIVERED: | 14 September 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 30 and 31 March 2017, 3 and 4 April 2017 and 10 July 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Radojev with Ms Smith on 30 and 31 March 2017 and 3 and 4 April 2017 and Ms Smith on 10 July 2017 |
| SOLICITOR FOR THE APPLICANT: | Griffiths Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms De Vere |
| SOLICITOR FOR THE RESPONDENT: | Jacqueline Kyle Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Jackson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
That the mother Ms Akbar have sole parental responsibility for the child B born 21 March 2012.
That the child live with the mother.
That subject to the order below there be, otherwise, no time or communication between the child and the father.
That the father is permitted to provide to the child every year birthday cards and/or birthday presents to be provided to a postal office box or other means of a postal address belonging to the mother.
That by way of injunction the mother is hereby restrained from causing, allowing or permitting the child to attend upon Dr C, psychologist.
That, otherwise, all applications be dismissed.
Independent Children’s Lawyer’s Costs
That the Applicant father pay by way of contribution of the Independent Children’s Lawyer’s costs the sum of $10,140.00 to Legal Aid NSW within three month from this date.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Akbar & Akbar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5797 of 2014
| Mr Akbar |
Applicant
And
| Ms Akbar |
Respondent
REASONS FOR JUDGMENT
On 2 December 2014 the applicant father filed an Application commencing proceedings in the Federal Circuit Court of Australia seeking parenting orders in relation to the child, B born 21 March 2012. The child at that time was only two years of age.
The father sought orders that, in summary, provided:
(1)that he and the mother have equal shared parental responsibility for the child;
(2)that the child live with the mother;
(3)that the child spend defined time with the father including alternate weekends from 5.00 pm Friday until 12.00 pm Sunday and in the intervening week from 4.00 pm Monday until 9.00 am Tuesday and from 4.00 pm Wednesday until 9.00 am Thursday.
The mother filed a Response to the father’s application on 3 February 2015 and an Amended Response on 7 September 2016. In her Amended Response the mother sought orders that provided:
(1)that the mother have sole parental responsibility for the child;
(2)that the child live with the mother;
(3)that the father spend no time with the child;
(4)that the father be restrained from approaching any place where the child may live and any school or child-care facility attended by the child.
Context
The mother was born in 1978 and at the time of trial was 38 years of age. The father was born in 1981 and at trial was 35 years of age.
The parties married in 2008 and separated on 13 August 2012.
The child was only five months of age at the time of separation.
The mother was born in Country D. Her family fled Country D in 1989 and ultimately arrived in Australia in 1991. The mother attended a public high school and completed her HSC studies in 1997. In 2003 she completed a bachelor degree at University.
The mother has a large extended family of Country D origin in Australia.
The father was also born in Country D and he arrived in Australia in 2003 after having lived in Country E for the previous 10 years.
The marriage between the mother and the father was an arranged marriage.
The Litigation
After the commencement of proceedings an Independent Children’s Lawyer (“ICL”) was appointed to represent the child on 3 February 2015.
Subsequently, at an interim hearing on 1 May 2015, the mother and father and the child were placed on the airport watch list and, by consent, an order was made that pending further order the child live with the mother.
On 2 June 2015 orders were made as follows:
(1)The mother shall have sole parental responsibility for the child [B] born … 2013 (the child).
(2)[The child] shall live with her mother.
(3)[The child] shall spend supervised time with the father for 1 hour per week on days and at times nominated by the coordinator of the [Suburb F] Children’s Contact Service.
(4)Each party shall comply with all rules and directions imposed by or on behalf of the coordinator of [Suburb F] Children’s Contact Service with respect to the supervised periods that occur pursuant to order 3 hereof.
(5)The mother shall deliver [the child] to the Centre on days and at times nominated pursuant to order 3 hereof.
(6)The father is to pay the costs related to the supervised visits including any report costs if applicable.
(7)The mother is to notify the father of any significant illness or medical condition suffered by the child within 24 hours, or as soon as practicable in the case of an emergency.
(8)Without admission both parties be restrained from:
(a)Using, ingesting or administering to himself/herself any illicit or non-prescribed drugs (other than over the counter medication);
(b)Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the child, the mother, the father, or any other member of either party’s household;
(c)Denigrating the other or members of the other party’s family in the presence or hearing of the child and each shall do all acts and things reasonably necessary to prevent any other person doing so;
(d)Discussing these proceedings or any issues arising out of these proceedings with the child or permitting any third party to do so; and
(e)Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other party.
(9)The father is to forthwith do all things necessary and to enrol and complete the following:
(a)[Post separation parenting] Course such as offered by [G Group]; and
(b)A parenting skills course such as Magic 1, 2, 3.
On 12 June 2015 an order was made for the preparation of a family report by a family consultant.
The family report was subsequently released to the parties by order made 22 March 2016.
Subsequently, on 17 June 2016 proceedings were transferred to this Court noting that it was anticipated that the length of final hearing would be five days plus. The proceedings were first listed before a registrar of this Court on 5 July 2016 and on 12 August 2016 directions were made for the matter to proceed to trial allocating four days for trial.
On 8 September 2016 further interim orders were made by consent changing the contact centre for the purposes of the child’s time with the father to the G Group Children’s Contact Service at Suburb H.
The final hearing of the proceedings commenced on 31 March 2017 and on 4 April 2017 was adjourned part heard for further hearing 10 July 2017 allocating two further days for trial. The hearing concluded on 10 July 2017 and judgment was reserved as to the final parenting issues for determination and as to the question of the ICL’s costs.
The Trial Documents
At trial the father relied upon the following:
a)his trial affidavit filed 12 March 2017 excluding paragraphs 27 to 168 inclusive;
b)the affidavit of Mr W Akbar, the child’s paternal grandfather, filed 25 November 2016;
c)the affidavit of Ms J Akbar, the child’s paternal grandmother filed 24 November 2016.
The mother at trial relied upon the following documents:
a)her trial affidavit filed 28 October 2016;
b)the affidavit of Ms K, the mother’s treating psychologist, filed 28 October 2016.
Orders Sought at Trial
At the commencement of the trial the father sought orders (Exh “A”) that, in summary, provided:
a)that the mother and father have equal shared parental responsibility for the child;
b)that the child live with the mother;
c)that the child spend time with the father on a progressive basis culminating in the child’s time with the father from the commencement of school term one in 2018 being each alternate weekend during school term from after school Friday until the commencement of school on Monday and in each other week from after school Monday until the commencement of school Tuesday, one half of the mid-year school holidays and three weeks in the Christmas school holidays in January together with time on special occasions;
d)specific issues orders as to:
i)changeovers where not at school being at a McDonald’s family restaurant;
ii)communication with the child each Tuesday, Thursday and Saturday with the mother similarly able to communicate with the child when the child was with the father;
iii)the carriage in a car of the child in a suitable child restraint;
iv)the mother being required to provide to the father relevant school information;
v)that the father be nominated as an emergency contact at the child’s school;
vi)that the mother and father be at liberty to attend child’s sporting, religious and extra-curricular activities;
vii)mutual exchange of information as to contact and medical details for the child;
viii)mutual non-denigration orders;
ix)restraint from discussing the proceedings with or in the hearing or presence of the child;
x)restraint from exposing the child to family violence including emotional or verbal abuse;
xi)restraint from physically disciplining the child;
xii)restraint from smoking in the child’s presence;
xiii)that the child be permitted to travel internationally with consequent facilitative orders as to such travel and that the mother obtain a passport for the child.
The mother at the commencement of the trial sought orders as provided for in her Amended Response referred to above (Exh “B”).
The Issues
The ICL in short form identified the primary issues for determination (Exh “C”) as:
a)whether the father should spend any time with the child either supervised or unsupervised and if so the frequency, duration and form of such spend time orders;
b)the need for any injunctive orders against the father;
c)whether the parties should have equal shared parental responsibility in respect of the child or the mother have sole parental responsibility.
The family consultant in the Family Report (Exh “D”) recommended that the mother hold sole parental responsibility for the child and that the child live with the mother. As to the child’s time with the father, the family consultant said:
69.If [Mr Akbar] was violent toward [Ms Akbar] and she was fearful of him, it would have been quite difficult for her to make the decision to leave the relationship. This is likely to have been exacerbated by pressure from extended family and possibly some members of the local [Country D] community. The thought of having to send the child to spend time with [Mr Akbar] is likely to continue to be frightening/traumatic for [Ms Akbar] and is likely to negatively impact upon her relationship with [the child]. [Ms Akbar] said that she has taken steps to manage her anxiety but continues to report physiological fear responses. [Ms L] diagnosed “an acute stress disorder in the context of Domestic Violence”.
70.It seems likely, that should [the child] continue to spend time with [Mr Akbar], she will continue to experience confusion and possibly ongoing fear, and that is likely to negatively impact upon her development.
71.Should [the child] cease spending time with [Mr Akbar] she would lose the chance of developing a relationship with [Mr Akbar] during her childhood. [The child’s] long term best interests are likely to be best served by protecting her mental health during her formative developmental years.
72.If [Mr Akbar] was violent toward the child and [Ms Akbar] in the way that has been described, and he has not taken steps to address his behaviour, he may pose an ongoing risk to [Ms Akbar] and to the child.
73.[Ms Akbar] said that she would like to have sole parental responsibility for the child. Given the allegations of violence and the highly conflicted relationship between [Ms and Mr Akbar], it seems unlikely that they will be able to work together in making decisions for the child’s future care. If the allegations of violence are true, it would not be reasonable to place [Ms Akbar] in the position of having to have contact with [Mr Akbar].
74.If the Court determines that [Ms Akbar] did experience violence at the hand of [Mr Akbar], and/or that she remains fearful of him to the extent that ongoing contact between [the child] and [Mr Akbar] would cause her high levels of stress, and as a consequence, cause the child undue psychological harm, it may be necessary to make orders that do not provide for the child to spend time with Mr Akbar.
Thus, significantly, the ultimate determination in this matter depends on the Court’s findings as to the history and nature of the parties’ relationship and their conduct.
The Parties’ Evidence
In this matter, as will be seen in the discussion below, there is a startling dichotomy between the evidence of the father and that of the mother particularly where the evidence touches upon the father’s conduct during the course of his relationship with the mother and thereafter.
The Court’s determination depends upon findings of fact as to what transpired during this turbulent relationship.
Many matters come before this Court that involves family violence. Regrettably, in many instances, the Court’s determination must be made on the basis of accepting the evidence of one or the other of the parties with assistance from objective sources from third-party entities such as hospitals and doctors or other witnesses who may have been present at the time of such asserted evidence. This is not one of those matters.
In this matter the mother gives a long history of the father’s aberrant behaviour that on occasion saw her transported by ambulance to hospital. Throughout the relationship she made complaints contemporaneously to her general practitioner, her counsellor, social workers, hospital staff and even her specialist obstetrician as to the father’s conduct and her fear and anxiety in relation to him.
It is also clear that in some respects where there is criticism of the mother’s reticence in making complaint to the police or other authorities she was significantly conflicted by the cultural entrapment in which she found herself. Her culture required of her obedience and subservience to her husband and the cultural expectation that notwithstanding the fundamental failings in her marriage by reason of the father’s conduct that she would remain in the marriage to meet the expectation of both sets of parents and the Country D community.
The mother’s oral evidence was characterised by her distress and anxiety and her strict avoidance of any form of eye contact with the father.
The mother in her oral evidence was clear, patient with persistent questioning and unwavering in her evidence.
Otherwise, the father’s evidence can be characterised as self-serving, lacking empathy and avoidant. It was easy for him simply to assert that he denied the allegations of the mother or in certain circumstances could not recall relevant events. His post separation communications with the mother have been described below as a disturbing diatribe of self-righteous indignation and complaint about the mother and her family and demonstrate the father’s expectation of the mother’s complete compliance with his wishes and commands with his aberrant conduct towards being fully deserved by her.
In circumstances where there is a conflict between the evidence of the mother and that of the father, the evidence of the mother is without reservation accepted.
The father’s proposal and circumstances
The father seeks to have ultimately substantial and significant time with the child on an unsupervised basis. At the time of trial he was living in a three-bedroom public-housing home occupied by the paternal grandparents, his brother and his brother’s wife and himself.
The father had been in receipt of Centrelink benefits since 2012 as a carer for his brother Mr M. Mr M at the time of trial had been married for five months and was living with his wife in the father’s household. When pressed as to the appropriateness of accommodation should he have time, including overnight time, with the child the father suggested that he would obtain independent rental accommodation although he had provided to the Court no evidence of such and on his own evidence had no independent financial capacity to do so.
The father had, since separation, provided no child support for the child and his ability to provide financially for the child into the future must be considered problematic, although he asserted that he had a savings account for the child that had accumulated a balance of about $5,000.00. None of these funds were offered to assist the child.
Historically, the father was diagnosed by Dr N in June 2005 (Exh “M”) with generalised anxiety disorder. The father reported being exposed to his own father beating his mother and described his father as a “sick person”. The mother says she observed injuries on the paternal grandmother when in the paternal household. The father further reported being medicated whilst in Country E before coming to Australia. The father saw Dr N intermittently until late 2007.
In June 2006 the father presented to his GP with anxiety, depression, and personality change and anger problems and was reported to be on the antidepressant drug Effexor.
He later in June 2012 presented to his GP with ongoing depression and anxiety and was referred again to Dr N. There is no record of him attending on Dr N following this referral.
In August 2014 the father reported to his GP a history of suicidal ideations and his dislike of medications.
On 8 February 2015 the father was referred to Mr O, Psychologist, for “history of stress, family domestic issues”. He appears to have some engagement with this psychologist but there was no evidence from the psychologist other than unhelpful notes produced on subpoena.
In February 2015 the father was referred again to Dr N. He appears to have attended on 12 February 2015. There is no report from Dr N as to the father’s current mental health.
The father, for his part, rejects the objective evidence as to his mental health issues.
The Relationship
Prior to their marriage the parties had an engagement ceremony in December 2007. Prior to that event the father revealed to the mother that he was depressed, had been prescribed the medication Effexor and was seeing a psychiatrist. The mother attended on an appointment with the psychiatrist Dr N on 30 November 2007 and was informed that the father had been off his medication for about six months but was “doing well”.
The father was unemployed at the time of the parties’ marriage in December 2008. The mother was in employment and rented villa accommodation at Suburb S. The father remained unemployed for the first six months of their marriage. Following marriage the mother became concerned as to the father’s behaviour. He experienced nightmares at night and she would wake to find him screaming in his sleep or grasping for breath. He complained of pain in his legs, shaking them frequently and punching them.
In February 2010 the parties moved to the father’s parents’ home that was, otherwise, occupied by his parents who had a bedroom each and his younger brother who slept in the living room. The parties had purchased land at Suburb P with a view to building on it later so moved into the father’s parents’ home to save money.
In May 2010 the mother left the husband’s parents’ home and moved to her parent’s home prior to having a surgical procedure in June 2010.
Following surgery the parties rented a home unit at Suburb Q that had been purchased by the wife’s parents as an investment property. The land at Suburb P that had been purchased was later sold.
The mother continued in full-time employment whilst the husband had periods of unemployment or periods of self-employment in a family business that realised little or no income and also worked part time through to separation.
The mother ceased employment in December 2011 about three months before the birth of the parties’ child. She complains that subsequent to the birth the father provided to her little or no assistance. The father concedes that he was not very involved with the child “because of work”.
The mother says that she was fearful for her safety and that of the child by reason of the father’s violent and abusive conduct.
The mother complains of many instances of abuse and family violence at the hands of the father (Trial Affidavit at [68]). Significant allegations by the mother are considered below as is other evidence:
a)An assault in April 2009 with the father pushing her hard in her upper chest causing her to stumble backwards.
b)The mother finding a 12 inch butcher’s knife under their bed on the husband’s side in May 2009.
c)A violent assault on the mother in May 2009.
d)The husband in November 2009 asserting that he had a gun in the safe at the home.
e)Assaults on the mother in December 2009 during which the husband punched the wall next to the mother’s head repeatedly damaging his right hand necessitating the father attending at R Hospital and later that month the husband assaulting the mother and threatening her with a butcher’s knife with the mother thereafter attending the Emergency Department at R Hospital. The father sought to deny the incident in his oral evidence asserting that his hand had been injured during a martial arts training session. His clinical notes reveal that he reported to the hospital that he had “punched wall in anger”: Exh “H”. His oral evidence that he had injured his hand in martial arts training was a blatant lie.
f)In February 2010 the father punching the mother to the head whilst she was a passenger in his car and then attempting to push her out of the moving car and the mother’s subsequent attendance at a medical centre in relation to her injuries.
g)The father’s financial control of her.
h)His intimidation of her including showing her a publication showing injuries inflicted by extremists on a wife who had left her husband.
i)The father not permitting her to speak to neighbours of the unit at Suburb Q.
j)Abuse of the mother often saying “you slut, you whore, because of you I am going to hell, you are disgracing me in the community”.
k)Throwing household items at the mother including cups, remote controls, plates and cutlery, lashing out at her by kicking, punching, pinching or biting as he passed her and then laughing.
l)Criticism and control of the clothing worn by the mother to ensure that she was appropriately covered according to his requirements.
m)After October 2010 holding a pillow over the mother’s space so that she could not read and struggled to get free causing the mother to be distressed and cry to which his response was to laugh.
n)Assaulting her about 9.00 pm on 4 October 2010 striking her about the head repeatedly, kicking her to the back of her legs and lower back during which the father smashed a coffee table and plates. An ambulance was called and the mother initially told the paramedics she had “tripped and fallen”: Exh “R”. She was taken to the Emergency Department at R Hospital (Exh “K”) where she informed the paramedics that she had been hit numerous times to the head by the father. The father when confronted with the incident in oral evidence simply could not recall it.
The mother declined to have the police involved for fear that the father would kill her or harm her family. This serious allegation is unequivocally supported by the mother’s discharge summary from the Hospital: Annex “A” to her trial affidavit. The mother reported to the hospital and the hospital social worker the father’s violence and the history of threats, some violence, control issues, and her fears that the conduct will escalate. The mother refused accommodation at a refuge but spoke to the Domestic Violence line but refused to contact police or family (Exh “K”). On returning home the father found brochures given to her by the social worker and said “if you tell I will kill you”.
o)Further the mother made complaint about the history of violence and abuse at the hands of the father to her GP Dr T on 8 October 2010: Exh “J” and Exh “AA”. She was told to report the violence to the police. She did not for fear of the father’s retribution. She was referred by the GP for counselling by the GP but it was noted by the service that the mother “has been very difficult to engage – describes fear of consequences if husband discovered she has sought counselling”. The mother engaged with Ms L, counsellor and provided a consistent history of ongoing abuse and family violence.
p)In August 2011 when pregnant the mother was told by the father “Have an abortion, go work. Go find money. I should give you a hand full of poison in your food”. The father continued to demand that the mother have an abortion through till October 2011. Often she was ill and unable to go to work and spent time at her parents to be relieved of the ongoing abuse at the hands of the father.
q)In October 2011 at R Hospital the mother participated in a psychosocial assessment in anticipation of the birth of the child in March 2012. In the context of that psychosocial assessment she reported relationship worries and that she was frightened by her partner but did not wish to talk to anyone about the issue.
r)In December 2011 that the father assaulted the mother grabbing her by her upper arms shaking her and slamming her into a wall and slapping her across the face. Later he apologised saying “you are not my responsibility, you are my possession… No, no you are my asset, you are my slave’.
s)In February 2012 when eight months pregnant the mother was again assaulted by the father who punched her repeatedly to the head and shoulders while she endeavoured to protect her stomach to protect the baby. The mother rang an ambulance saying that she had fallen and taken from the Suburb Q unit to R Hospital (Exh “K”). The mother reported feeling anxious due to “social issues at home with husband and mother in law”. The mother did not reveal the violence to the counsellor for fear that the father would kill her and that the Department of Family and Community Services might take the child.
The mother made complaints and informed her obstetrician Dr U (Exh “Q”) as to what had happened and was referred to a domestic violence counsellor.
t)In March 2012 following the birth of the child the mother was seen by the clinical psychologist at R Hospital. She reported aspects of her relationship with the father. The father’s emotionally abusive behaviour towards the mother whilst in hospital was observed. She was advised that if she was afraid for her safety or there were further incidents of family violence she should call the Police and return to her parents’ home. It was recommended she contact her psychologist and see her GP (Exh “Y”).
u)In April 2012 following the birth of the child the husband again assaulted the mother, shaking her repeatedly and slapping her repeatedly across the face using both hands saying “Slut, you point at me. I am going to rip you apart”. The father then placed his hands around the mother’s throat and squeezed then put a pillow over her face shouting “I am going to make the sky fall on you. I am going to kill you”.
v)Later the father upset by the child’s crying threw the child, only a few months old onto a bed, shouting at the mother “Take her and shut her up”.
w)On 25 April 2012 the mother became concerned about the child and the presence of blood in her nappy. A medical practitioner attended at the home and informed the mother that if the child remained unsettled to take her to hospital. The child became more distressed and the mother commenced to prepare to take the child to hospital. The father said “I’m not going anywhere… I’m not letting you take her if you want to go go”. The mother attended at R Hospital and was informed they could do nothing without the baby being present. The next day after the intervention of the paternal grandmother the mother was able to take the child to R Hospital at about 10.00 am. The circumstances of the mother’s attendance at the hospital are confirmed by the discharge summary Annexure “B” to the mother’s trial affidavit.
x)In June 2012 the child was crying and the mother told the father the child did not know she was bothering him. The father shouted back “Shut your mouth. You see that knife? I will disembowel you all, kill you, the child and myself with it”.
y)Later in June 2012 in fear of the husband, the mother placed a chair behind her bedroom door as the lock was not secure. The husband tried to open the door one night and screamed “You are closing the door on me! Open the door you daughter of a dog, I will show you”. With that the father burst through the door picked up a chair and threw it at the child’s bassinet causing the bassinet to fall on its side.
z)On about 19 June 2012 the father again assaulted the mother and threatened the mother with a knife saying “I will take your intestines out with that knife I will kill you kill her and myself then I will find peace”. On 18 June 2012 the mother made further complaint to her GP Dr T (Ex “Q”) who made observation as to her injuries.
aa)Following separation in November 2012 the father continued to threaten the mother saying “If you are not returning I will take your intestines is out and kill the child, I am going to kill you both.” On one occasion in October 2012 the father drove his car at the mother.
bb)In November 2012 the mother spoke to her GP about the separation. She was not sure if she should seek an AVO against the father.
The father for his part provides a general denial of the wife’s allegations against him referring to them as “only allegations”. The paternal grandfather denies being aware of any issues in the relationship between the father and mother.
On separation the mother excluded the father from the Suburb Q unit.
There was a family meeting on 13 August 2012 during which the father hurt her on the chest. The mother reported the incident to her GP who noted bruising on the chest wall and that the mother was receiving counselling.
The father, many months after separation, sent a letter dated 31 March 2014 to the mother. The letter, as well as other SMS messages to the mother post separation that seem to acknowledge his violence and aberrant conduct, are a disturbing diatribe of self-righteous indignation and complaint about the mother and her family and demonstrate the father’s expectation of the mother’s complete compliance with his wishes and commands with his aberrant conduct towards being fully deserved by her.
He does not accept that the mother is frightened of him: “I have done nothing to scare her”. Her allegations “make me sick to my stomach”. He has regret for only “something I may have said”. Her allegations, he says, were deliberate lies “to get custody of my daughter and to destroy my relationship with the child”. He denies any mental illness stating “her allegations against me are so shocking”.
The father acknowledges there has been no positive communication with the mother since separation. He mistrusts her and says “she is lying”.
The paternal grandparents have had no contact with the mother since 2013.
The mother’s proposals and her circumstances
The mother sought psychological help in March 2016 from Ms K Clinical Psychologist and in a detailed report dated 11 October 2016 was diagnosed with post-traumatic stress disorder and panic disorder that developed into a major depressive disorder both at chronic levels of severity, and experienced major psychosocial stressors given her continued fears for her daughter’s contact with the father.
Ms K was required for cross-examination. Her oral evidence was instructive. She outlined her experience thus:
And [Ms K], your expertise and experience are as a result of your studies in psychology; is that correct?
Studies in psychology, but I’m also a culturally competent psychologist in Muslim backgrounds…
As to the prospect of the mother recovering from her fears of the father she opined:
[Ms K], you haven’t seen [Mr Akbar] or spent any time with [Mr Akbar] as we established. Just from the time that you’ve spent with [Ms Akbar], is it your professional opinion that she could overcome these fears and anxieties of [Mr Akbar]?
No, definitely not.
Not – no matter what treatment she’s given, no matter what therapy she receives, it’s your professional opinion that she will definitely never be able to overcome her fear of [Mr Akbar]. Is that correct?
My professional opinion is that she has been living with constant fear of [Mr Akbar] throughout the marriage and also after the separation. There has been no contact between them since, you know, and when the topic of [Mr Akbar] is mentioned in sessions you can visibly see her heightened sense of hypervigilance and arousal levels and until she engages in, for example, exposure therapy, you know, which is very difficult at this stage, I don’t see any reduction in her being able to be comfortable liaising with [Mr Akbar]. No.
It was suggested to Ms K that the mother may have exaggerated her complaints of domestic violence. She responded:
With regards to the domestic violence, no, because the – as I said earlier, her clinical presentation, so what she reported, was quite consistent with the collateral information of external mental health providers as well. She clearly presented as a victim of domestic violence. Her information was quite consistent through presentation and through reports as well.
The mother’s fear that the father would poison the child was addressed thus:
And my – and my assessment of the poisoning is – I mean, she was consistent because she talked about fear of poisoning when she was together. He reported he wanted to poison her and her daughter and then she was consistent in the sense that when she was also talking about how fearful she was when she – when the child was in supervised visits, she was fearful of [Mr Akbar] giving her juice because she was fearful of him poisoning that juice or putting poison in that food so her consistent fear about the poison was in different context so if she was exaggerating she would have mentioned it once and left it general, but she was very specific in circumstances where those would take place.
…
She would many times talk about how when they were at home that he – he would not only be physically violent but he said that he wished that they were both dead. He wished her daughter was dead as well and he would throw her against – he actually – she reported that he threw her onto the bed and he would shake her as well and had – had made multiple threats towards her and her daughter.
The impact on the mother of her diagnosed disorder was considered thus:
What are the – in what way does that – can that impact upon someone’s life – their lifestyle if they suffer from that sort of disorder?
Okay. Well, a person who is suffering from post-traumatic stress disorder, they would have to fulfil certain criteria. For example, they would have to fear that their life was being threatened or in danger. They would experience hyper-arousal, avoidance, and also hypervigilance. You know? And that can be very debilitating condition. So that would also impact on a daily functioning. So whether it’s work, studies, personal and social life as well. So it’s like a global condition that affects the daily functioning. So they would require psychological therapy in order to reduce that symptomology. In order to regain daily functioning.
And in relation to [Ms Akbar], in what specific parts of her daily functioning was – were jeopardised by the disorder you say she had?
Well, she could not re-enter the workforce. She was hoping to re-enter the workforce. Or do some studies to continue her … studies. And, also, she became very much isolated as well from social interaction.
The symptoms and treatment of the mother were the subject of enquiry from counsel for the ICL:
Now, you’ve said also on page 2 about her suffering from a major depressive disorder recurrent. Is that different from a post-traumatic stress disorder in terms of its symptoms? What are its symptoms?
Because with major depressive disorder it’s a pervasive low mood state which lasts – which – there’s a minimum of two weeks. In her case, it has been long-standing where a person who is suffering from major depressive disorder would experience symptoms of their appetite being affected to sleep being affected. Concentration and memory being affected. Also, the energy levels will be decreasing and hedonia, which means anything that she found pleasurable will no longer be pleasurable. So there’s a range of symptoms associated with major depressive disorder that’s different to post-traumatic stress disorder, which is related to her physiological arousal in terms of the memory of the trauma.
I see. And did you feel as though she was suffering those sort of symptoms that you just described?
Yes, yes.
Okay. Now, you’ve indicated that – with these disorders that she will require further psychological assistance to assist. So it’s your intent that you will continue to counsel her and treat her?
That is correct, yes.
…
So what sort of treatment is she going to require?
She is going to require exposure therapy, cognitive restructuring. Also relaxation strategies, motivational interviewing so that she can actually pick herself up and be able to re-engage within society as well, and also EMDR is – would most benefit.
…
Exposure therapy is when you engage the client to remember the incidents of trauma and heighten their arousal levels so they can sit with the arousal levels so eventually it can decrease over time.
The prospect of a no contact order was put to Ms K:
So on that basis, you’d agree with me that if the court made a no contact order completely it wouldn’t reassure [Ms Akbar’s] mind that she was safe?
It would give her – it would give her additional peace of mind. It won’t be absolute.
The impact of an order that the child have contact with the father and its impact on the mother was considered by Ms K thus:
Now, if the court wants to make some order that reflected, for example, an opportunity for the child to have some very limited supervised time with the father, do you have any recommendations as to what the mother should do in terms of your involvement with her as her psychologist?
Well, if – if the court did make that ruling, then, obviously, one of my primary responses would be to help her alleviate those anxieties and to help understand it’s just a limited time, and also look at ways to help her adjust, you know, because courts – rulings are court rulings and everyone needs to abide by them. So she would need to develop strategies to be able to deal with those and get the support that she needs, you know, to make it – make it all possible.
…
And you’re confident as someone who you’ve seen for some time that she would be motivated to be able to try and pursue that sort of therapy?
Yes. We can attempt, but it doesn’t mean it’s going to be successful.
The Court took Ms K to the issue of supervised or identification time only and the impact of that on the mother in the following exchange:
[Ms K], in the event that the court made some order for, say, supervised time, or even – do you understand the concept of identification time where a child may see the father in supervised arrangements maybe three or four times a year till the child is an early teenager when the child can then make up their own mind? In any event, if there’s an order made for the child to come back into contact with the father, from your observations of the mother, would that have some effect upon her parenting ability?
I would say in relation to [Ms V], yes – sorry, [Ms Akbar], yes. My understanding from what she has informed me was that there has been no contact even since August last year and no attempt to re-engage contact formally with the child. So the inconsistency of – the current inconsistency in time spent between father and daughter is also a – a major issue as well. My professional opinion in terms of how I see [Ms Akbar] and her consistent fears in relation to the continued contact – also the information that I have before me about ongoing domestic violence issues – would say that it’s unsafe for – for – for [the child] to continue.
Well, do I take it from that response that she would maintain ongoing manifestations of hypervigilance, hyper anxiety and concern?
Yes. That is correct.
And is that likely to be – have some impact on [the child], having her primary carer in that circumstance?
Yes. Because often when one of the parents is highly anxious, the child starts to develop also those symptoms through – through observational learning. And also it’s – it’s not in the current psychological report, but in the last few sessions I’ve had with [Ms Akbar], she has been researching ways to – to live outside her current area so that she can actually live with her daughter outside – outside all the influences at the moment that she believes is affecting her parenting.
The consideration by Ms K as to the mother’s anxiety is consistent with the mother’s presentation to her counsellor, Ms L, subsequent to final separation when the mother presented with “an acute state of anxiety” with her constant fear for safety for herself and her baby evoking intense autonomic nervous system arousal, tremor and hyper vigilance for threats. Ms L also noted that the mother’s thought processes involved guilt and shame that she could not fulfil cultural expectations of a dutiful Muslim wife. Ms L reported that a diagnosis of acute stress disorder in the context of domestic violence that has significantly challenged her personal and cultural values was made.
Those cultural values have led to the mother having little support from her immediate family. She does not see her father at all. She could not, before separation, tell her parents of the relationship violence “because they want me married”. When she did inform her parents of the violence after separation her parents, embarrassed by the shame of her leaving the father, arranged a meeting with the paternal family to seek a reconciliation. Her parents still want her to return to the father. She remains under pressure to do so.
The mother remains fearful of the father by reason of her lived experiences and the ongoing cultural expectation for her to be the obedient and subservient wife. Yet she feels safe in Sydney in her current living circumstances. She does not work but proposes to do so when she “feels better”. The child is attending day care.
During the course of her oral evidence the mother’s presentation was one of disengagement from the father. She could not bring herself to look at him. She was deeply suspicious of the father. She was tearful at times and became easily distressed.
Her evidence was, otherwise, indicative of the child being inappropriately engaged in the issues before the Court, with the child, during contact in July 2016, accusing the father of hitting the mother. The mother acknowledged that the child may well be influenced by the mother’s emotional trauma and fear of the father that is reflected significantly in her attendances upon her GP Dr T (Exh “AA”).
She seeks that the child have no contact with the father by reason of his aberrant conduct and his failure to acknowledge same: “All I hear is deny, deny, deny”.
The child, now five years of age, has had no contact with the father since August 2016 when supervised visits stopped.
The Family Report: Exh “D”
The Single Expert Family Report was dated 15 March 2016 with the parties and the child being seen shortly before.
The issues identified by the family reporter were:
•The likely impact on Ms Akbar’s mental health should the child spend time, particularly unsupervised time, with Mr Akbar;
•The impact upon the child’s mental health should she continue to spend time with Mr Akbar;
•The long term impact on the child should her relationship with Mr Akbar be severed.
The mother’s presentation was described as follows:
20.[Ms Akbar] presented as quite anxious, both during the Duty Child Dispute Conference in February 2015 and during Family Report Interviews. She arrived for the Family Report interviews with two support workers. [Ms Akbar] said that she has been having counselling and doing meditation in order to manage her anxiety but described continuing to have a physical fear reaction at the thought of contact with [Mr Akbar]. She said that she has trouble sleeping, grinds her teeth at night and sometimes wakes up not knowing where she is. [Ms Akbar] said that she begins sweating and has trembling sensations.
The cultural issues were readily apparent:
22.[Ms Akbar] is quite clear in what she believes the threat to be in coming into contact with [Mr Akbar]. She said that she believes that he will kill the child. [Ms Akbar] indicated that she does not believe that [Mr Akbar] truly wants to reunite but rather that it is an issue of honour and ego for him in the face of the wider [Country D] community.
23.[Ms Akbar] said that the paternal grandfather, [Mr W Akbar] has said that if there is bloodshed it is not going to be his fault.
And later:
32.[Mr Akbar] explained the impact of the separation on him, on the extended family an in relation to the [Country D] community that he and [Ms Akbar] belong to. He said that the separation brings shame upon them and that he would “take her [Ms Akbar] back for the child’s sake”.
In evaluation the family reporter said:
65.Reports from the contact centre and from both [Mr and Ms Akbar] indicate that the child has experienced confusion, discomfort and fear in spending time with [Mr Akbar]. She is also reported to play with [Mr Akbar] from time to time. The child’s reaction toward [Mr Akbar] during the Family Report observation reflected a high level of confusion. This is not surprising given her age, the length of time since she had seen [Mr Akbar] and, most importantly, because [Ms Akbar] is frightened that [Mr Akbar] will hurt or kill both of them.
66.[The child] will use [Ms Akbar] as her point of social reference. Parents teach children what and who to be careful of (physical hazards, strangers etc.). [Ms Akbar] alleges a history of serious family violence and said that she is scared of [Mr Akbar]. It is unrealistic to expect that [Ms Akbar] would feel calm in sending [the child] to spend time with [Mr Akbar], even in a contact centre. [The child] is highly likely to have sensed her anxiety even if [Ms Akbar] has not said anything directly to her that might encourage her to be fearful of [Mr Akbar].
67.Observations in matters such as these can be misleading. Some observers may see the child playing and assume that they are comfortable. Attachment research has demonstrated over many years that children do not necessarily continue to resist/complain about situations they have no control over. It is of note however, that [the child] has continued to resist [Mr Akbar] whilst also demonstrating confused behaviour such as asking for him to stay and demanding that he not be “late next time”. This behaviour does raise serious concerns for the child’s future mental health.
68.[Ms Akbar] cites [Mr Akbar] denying past violence as a significant reason to continue being in fear of him. It is likely that [Ms Akbar] will continue to be fearful of [Mr Akbar]. She also said that he has threatened her post separation and said that his father (the paternal grandfather) suggested that there could be bloodshed. There appears to be records dating back to at least 2010 when [Ms Akbar] did speak of the violence and of her fear of [Mr Akbar] and appears to have sustained injuries.
69.If [Mr Akbar] was violent toward [Ms Akbar] and she was fearful of him, it would have been quite difficult for her to make the decision to leave the relationship. This is likely to have been exacerbated by pressure from extended family and possibly some members of the local [Country D] community. The thought of having to send [the child] to spend time with [Mr Akbar] is likely to continue to be frightening/traumatic for [Ms Akbar] and is likely to negatively impact upon her relationship with the child. [Ms Akbar] said that she has taken steps to manage her anxiety but continues to report physiological fear responses. [Ms L] diagnosed “an acute stress disorder in the context of Domestic Violence”.
70.It seems likely, that should the child continue to spend time with [Mr Akbar], she will continue to experience confusion and possibly ongoing fear, and that is likely to negatively impact upon her development.
71.Should the child cease spending time with [Mr Akbar] she would lose the chance of developing a relationship with [Mr Akbar] during her childhood. [The child’s] long term best interests are likely to be best served by protecting her mental health during her formative developmental years.
72.If [Mr Akbar] was violent toward the child and [Ms Akbar] in the way that has been described, and he has not taken steps to address his behaviour, he may pose an ongoing risk to [Ms Akbar] and to the child.
…
74.If the Court determines that [Ms Akbar] did experience violence at the hand of [Mr Akbar], and/or that she remains fearful of him to the extent that ongoing contact between the child and [Mr Akbar] would cause her high levels of stress, and as a consequence, cause [the child] undue psychological harm, it may be necessary to make orders that do not provide for [the child] to spend time with [Mr Akbar].
RECOMMENDATIONS
75.It is recommended that [the child] live with [Ms Akbar].
76.It is recommended that [Ms Akbar] have sole parental responsibility for [the child].
The Family Reporter’s Oral evidence
Shortly prior to giving oral evidence, the Family Reporter had the opportunity to see the child and the father for an observation session as there had been no contact since August 2016.
The reporter commented:
I think, overall, my observations were that [the child] continues to present as extremely confused about her relationship with her father.
Right. And could you ascertain any reason why from your observations or ?
There’s – look, there’s likely to be a number of reasons. The most obvious is the time that she has and hasn’t spent with him through her life and I would suggest that probably her mother’s attitude towards the father and their relationship would be impacting that although I think that would be more on a subconscious level.
…
And that she has, as it were, picked up the vibe, as it were, of her mother’s anxiety?
Yes. And what I would say is from my – the first time that I met [the child] and again from today I think it would be more likely in the – in the shape of a vibe. [The child] seems to think that her mother and father are friends. She thinks that her mother is quite happy for her to see her father. But she’s obviously picking something else up because she’s anxious.
As to the mother’s anxiety, counsel for the ICL posed the following:
But, as I think you would appreciate, and regretfully in society where there’s family violence, it’s quite common to see family violence being subject to not only allegations but findings by the court but that doesn’t necessarily equate to a no contact order and the degree of family violence has to be reasonably sufficient. Would you accept that?
I wouldn’t accept that on its own. I think that – I mean, what I – what I’ve observed over the many years that I’ve been doing this work is that people can cope with – different people can cope with the same level of abuse violence at – in different ways. And there are some – you know, whereas you might – I might interview somebody who has been what one person would call horrendously abused and shrug that off as normal. Another person might have experienced a much lesser degree of violence and be even more fearful than that person. So it – you know, there’s a great dependent on how that person manages themselves.
Depends on the individual in other words? Absolutely.
Yes. And I know there’s a concept which is found in the authorities about a reasonable basis for the violence but, in the case of this mother, you were of the view that she was, by nature, a naturally apprehensive and anxious person?
She certainly appeared quite – quite an anxious person, yes. And I believe has been diagnosed with an anxiety disorder. Which is exactly what I’m talking about.
And later:
Look, it was my assessment that she was genuinely frightened.
As to the prospect of a no contact order as opposed to some form of contact, the reporter opined:
It would therefore be the question the court needs to balance protecting the child and protecting the anxiety of the mother with their being potentially some opportunity for [the child] to have a relationship of some kind with the father. Would you believe that it might be in [the child’s] best interest that there be some sort of identification order made under those circumstances? If his Honour was to make the finding that the violence was there and the mother’s apprehensions were reasonable would an identification order be in the better interests of [the child]?
Better than a no contact at all? Yes, I think so. I think
Why would that be?
Well, so that she has the opportunity to get some understanding of who her father is, who – what her paternal family is like and what – what they bring into her world and to give her the opportunities that, you know, at some point in the future if she wants to have and pursue that relationship that that’s going to be made more possible because the door is left open.
And I think you already mentioned this in the context of the historical supervision that it tends to be a very positive time because it’s short and everyone is under the spotlight. That was the word I was trying to think of a moment ago. Under the spotlight. And so there could be a lot of positive things associated with an occasional identification type arrangement?
Yes, depending on how often that that was.
Conventionally, it’s usually about three or four times a year. Would that be something that you would think would be appropriate?
Look, I think that – I think that, you know, as – three or four times
HIS HONOUR: I suppose is it the issue that you need to balance the amount of time that you may do identification time with, in fact, his role, really, in her life? So if he’s to be – have a very limited role in her life because of his behaviour and the mother’s fears the identification might only be twice a year?
Yes. Exactly. Yes.
MR JACKSON: Just going back to the issue of if his Honour made findings that there was no – not sufficient violence and the mother’s apprehensions were not reasonable but, nevertheless, there’s this conflict and there’s this determination from the mother’s position that she is scared and doesn’t want a relationship between the father and the child it would be important, therefore, for both parents to manage such conflict, wouldn’t it, in those circumstances?
Look, I – I – I can – I could see that being quite problematic. My concerns would be around the support that they would have once leaving the court environment and how they would be able to manage that. From what I see and what I’ve read, most of the information that was before me this morning, I can’t see that there’s any kind of platform for that to be positive.
As to the prospect of orders for contact with the father in light of the cessation of supervised time well before trial, the reporter said:
But I guess – I’m assuming that the mother stopped the contact. I don’t know. And, if that’s the case, that will give you an indication of what’s likely to happen in the future. And if she did I don’t know why she did. Was it because she had some concerns about what was happening at the contact centre? Was it just that she just couldn’t bring herself to take the child because she was fearful? I – I – I really don’t know. But those are the sorts of things that I would imagine are likely to happen in the future. Now, this little girl – it’s – it’s interesting. She presents as quite a bright little girl. Quite – meeting her developmental milestones. Also with a propensity to be quite precocious. I – I noted in the family report that she had a wry smile on her face at one point and, you know, I – I guess what I saw from her was this kind of developing oppositional behaviour. It was like you don’t want me to do this so I’m going to or you want me to do this so I’m not going to. Now, I would say – I would suggest that that is a part of her personality. I think that she’s going to be a child who is going to have quite a strong stance as she gets older, and I think that her mother is probably going to have some issues in dealing with her as she goes through her developmental stages and, particularly, adolescence if she continues to be such a strong willed little girl who is displaying maybe some kind of oppositional behaviour. Now, that thrown into the mix of what might go on between mum and dad over the – over those years is, I think, will also present some real problems.
And, also, what may go on with the mother’s ongoing emotional?
All of that.
The mental health fragility? Yes.
Those problems referred to by the reporter would not be helped by the father’s denial of family violence:
I think the most obvious thing is that if we’re talking about the mother’s anxiety having an impact on her parenting capacity if he denies that there has been any violence when there has been it’s certainly not going to help to alleviate any of her concerns.
The prospect of identification time only and when it should stop was considered by the reporter who considered that 16 was an appropriate age but provided the child had psychological support from the age of about 11 or 12 both before and after each visit. It was also appropriate for the father, if there was going to be supervised time, “to spend some time with a practitioner, a qualified practitioner, in understanding how best to interact with the child during that time”.
The ICL’s final proposals
At the conclusion of evidence, the ICL provided a minute of orders sought on behalf the child: Exh “BB”. Those orders provided:
(1)that the mother have sole parental responsibility for the child;
(2)that the child live with the mother;
(3)that subject to the order below there be otherwise no time or communication between the child and the father;
(4)that the father be permitted to provide to the child every year her birthday cards and/or birthday presents to be provided to a postal office box or other means of a postal address belonging to the mother;
(5)that by way of injunction the mother be restrained from causing or allowing or permitting the child from any further attendance upon Dr C, psychologist.
The ICL submitted that there was an extraordinary dichotomy between the father’s almost complete denial of family violence and the mother’s detailed evidence as to the father’s aberrant conduct supported by significant contemporaneous objective evidence. The ICL contended that the mother’s evidence was compelling and made even more so by the mother’s presentation in the witness box. The father evidenced a complete lack of empathy or sympathy for the mother.
The ICL expressed concerns over the father’s significant mental health history, in particular, his suicidal ideation reported to his GP in 2014.
The orders sought by the ICL were, it was contended, reflective of the matters referred to above. It was contended by the ICL that findings of family violence did not in themselves preclude the father’s relationship with the child. However, significantly, the mother as the child’s primary carer was and is emotionally disturbed by the relationship with the father and the evidence of Ms K was significant in this regard.
It was clear that the mother was determined not to facilitate a relationship between the child and the father by reason of the history of family violence and her protective concerns for the child. The ICL had concerns that if there were orders facilitating the father’s contact with the child, issues such as the father’s lack of emotional regard to the mother and his lack of insight and/or empathy would cause any arrangement to be highly conflictual and impact adversely on the child. It was not in the child’s best interests, contended the ICL, for there to be orders for the child to have time with the father save for a consideration of identification time only.
As to identification time, the ICL referred the Court to the evidence of the family reporter and submitted that ultimately it was a balancing exercise between the benefit to the child of some relationship with the father and the effect that even that constrained relationship would have on the mother as opined by Ms K.
Reflecting the legislative intent that a child should have a relationship with both parents, the ICL contended that it would be, otherwise, appropriate for the father to have some limited communication with the child by way of cards and gifts as reflected in the ICL’s minute of proposed orders.
The ICL held continuing concerns about the mother’s anxiety and considered it appropriate that the mother continue therapy.
Otherwise, the ICL had concerns about the child, at the instigation of the mother, seeing a psychologist/counsellor with such arrangement facilitating the child picking up the mother’s anxiety about the father. This was particularly so where the child by reason of her age at separation would have no independent recollection of her father’s conduct.
The ICL further contended that as opined by Ms K the mother would be assisted by finality.
The orders sought by the ICL were supported by the mother.
Counsel for the father conceded that there was some objective evidence of family violence by way of certain complaints made by the mother and observations as to her injuries. However, it was contended that the mother’s evidence was, otherwise, expansively exaggerated in its scope as to allegations relating to the father’s behaviour.
It was further contended on behalf of the father that an order for the child to spend time with the father would not expose the child to unacceptable risk of harm “if the mother overcomes her fear”. Regrettably, the evidence is that it will take quite some engagement in therapy to even endeavour to remediate the mother’s fear and/or apprehension of the father and her fear for the safety of her child.
It was contended on behalf of the father that orders should be made as sought by the father at the commencement of trial save for the interposition of a “lengthy period of supervision” if time with the father was to be ordered. Such period of supervision would be at the Court’s discretion and for at least a period of 12 months. Separation from the father would, it was contended, be difficult for the child’s development and to make any orders for time work the mother and father could undertake therapy.
Parenting
The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)],
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)]
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
Best Interests:
The Primary Considerations: s 60CC (2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship:
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The relationship that the child has with both parents at the time of trial is considered above. The mother has been the child’s primary carer since birth. The father, for the reasons discussed above, has a disrupted relationship with the child, indeed, the father had no relationship with the child for some two years after separation with the relationship recommencing in only a supervised capacity in 2015 and ending in that capacity in August 2016.
This consideration must look prospectively as to the child’s relationship with each parent in each circumstance being important, significant and valuable to the child. It is clear that it is crucial that the child remain in the primary care of the mother. That is her proposal and the proposal of the father and the ICL.
The vexed question is whether a relationship, howsoever constrained, with the father will be important, significant and valuable to the child. The ICL is of the view, as referred to above, that limited communication between the father and the child into the future is in the child’s best interests.
The question of family violence in this matter is a significant factor. As referred to above, the evidence of the mother as to what transpired during the relationship and thereafter is unequivocally preferred to that of the father. As such, there is a finding of significant family violence perpetrated by the father on the mother and indeed the child. As submitted by the ICL, the father’s continuing denial as to his behaviour when the mother’s assertions are supported by significant objective evidence is very concerning. His denial impacts significantly on the mother’s anxiety as opined by Ms K and is a matter of concern for the family reporter.
The child’s best interests are best served by her being in the primary care of the mother with the mother not being exposed continually to the prospects of contact with the father either directly or indirectly and to prospective conflict from him. As opined by the family reporter, this could only result in the mother’s anxiety being heightened with a consequential impact on the child and the mother’s parenting capacity.
This consideration is supportive of the orders sought by the ICL and the mother.
Section 60CC(2)(b) – need to protect
This consideration requires the Court to have regard to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court is required to consider the issue of risk and whether there is an “unacceptable risk” to the child arising from a resumption of the father/child relationship.
The issue of unacceptable risk has recently been considered by the Full Court of this Court in Stott & Holgar and Anor [2017] FamCAFC 152. The Full Court said:
34.The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
35.The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador (2009) 43 Fam LR 268 at [89].
36.In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
37.As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …(footnote omitted)
38.We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).
…
41.It is also difficult to discern from his Honour’s reasons how the benefit to the child of having a meaningful relationship with the father ameliorated what would otherwise have been an unacceptable risk arising from the father’s violent tendencies. Once unacceptable risk has been found, it is important for a trial judge to provide adequate reasons to explain how an unacceptable risk has been ameliorated (see generally Bennett and Bennett (1991) FLC 92-191 at 78,267).
The risk to the child is reflected in the father’s historical conduct in his relationship with the mother (set out in detail above) and for a short period his conduct in relation to the child and his conduct post separation.
He demonstrates little insight into the ramifications of his aberrant behaviour and maintains mostly an absolute denial of each and every one of the mother’s allegations. In the light of significant objective evidence, his ongoing denials of his conduct demonstrate a very concerning and steadfast unwillingness on his part to admit his conduct and, otherwise, a complete lack of reflective capacity to consider the ongoing impact of his behaviour on the mother, there is a clear unacceptable risk of the mother and/or the child being subjected to or exposed to aberrant conduct by the father if he is given the opportunity.
Should there be orders that provide for some form of ongoing contact between the father and the child there is grave concern, as opined by the ICL, that such would result in ongoing conflict and heightened anxiety for the mother sufficient to impact adversely on the child psychologically. This consideration is of grave concern and in itself represents a clear and unacceptable risk to the child and the mother.
These protective considerations are reflected in the orders sought by the mother and the ICL. It is impossible to see a pathway to ameliorating such risks.
The Additional Considerations
Section 60CC(3) sets out the additional considerations:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
to communicate with the child;
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
There is no appropriate evidence as to the child’s views save for the irresistible inference from the child’s history that she has significant attachment to the mother as her primary carer.
The relationship of the child to each of the parents is considered in detail above. The paternal grandparents and extended paternal family have had no relationship with the child since 2013. The maternal grandmother and other extended maternal family have some relationship with the child.
The mother has, since the child’s birth, had the primary care of the child and hence the obligation to make major long-term decisions in relation to the child. By reason of his fractured relationship with the child, the father has had no such engagement.
The mother has been the sole financial provider for the child in the years post separation and there is every prospect that she will remain with such obligation by reason of the father’s complete failure to provide financial support for the child in the years since separation.
The change in circumstances for the child contemplated in the context of these proceedings is on the father’s case a resumption of the child spending time, indeed spending immediate unsupervised time, with him. The prospective impact of the child resuming a relationship with the father has been considered above in the context of risk and the mother’s anxiety and psychological fragility. There is, indeed as opined by the family reporter, a risk to the child by reason of that risk to the mother. This consideration is significant.
There is no practical difficulty or expense in the father spending time with the child but, as discussed, the question of such time is overshadowed by much more significant considerations.
The mother has demonstrated an appropriate capacity to meet the needs of the child and indeed the family reporter comments favourably on the child’s presentation both on initial interview and on observation shortly before the trial. On the other hand, the father has no demonstrated capacity in this regard and indeed there must be grave reservations as to any such capacity by reason of his conduct during and after the relationship and his overarching long-term mental health issues that substantially appear to be unaddressed.
The child is now five years of age and, as opined by the family reporter, at a stage where her ongoing psychological development should not be subject to any adverse influences. In this regard, there is significant concern that in the event that the relationship between the father and child was resumed the adverse impact on the mother would unduly impact on the child’s psychological development.
The father has demonstrated an inappropriate attitude to his responsibilities as parent by reason of the family violence perpetrated by him, his absenting himself from the child’s life for two years after separation and his lack of support for the child in the mother’s household.
There has been family violence in the relationship between the mother and father, the evidence of such is set out in detail above. The reality of such violence, as opined by the family reporter, leads to grave reservations as to the nature and extent, if any, of the child’s future relationship with the father.
There is no relevant family violence order.
It is preferable in the context of these proceedings to consider making orders that would preclude any further proceedings. It is the view of Ms K that the mother requires finality. It is the view of the family reporter that even orders for identification time between the child and the father has a strong prospect of leading to conflict between the mother and father and the mother withdrawing the child’s time out of her protective concerns. Such would lead inexorably to further proceedings.
Parental responsibility
In the context of this matter and for the reasons discussed above as to the child’s best interests and by reason of the findings as to family violence, the presumption as to equal shared parental responsibility will not apply.
A consideration of the child’s best interests is clearly indicative of the mother holding sole parental responsibility for the child. An order will be made accordingly.
Overview
Ultimately, a consideration of the child’s best interests as discussed above leads to only two alternatives. Firstly, that there be identification time for the child with the father on three or four occasions each year or secondly, that there be an order that the child spend no time with the father and that his communication with the child be limited as proposed by the ICL.
A resolution of the two alternatives is readily made after a consideration of the question of unacceptable risk above, particularly the evidence of Ms K as to the mother’s psychological fragility and a consideration of the evidence of the family reporter as discussed above.
There is significant risk to this child through the risk to the mother of any ongoing relationship between the child and the father. Neither Ms K nor the family reporter were challenged in this regard during their oral evidence.
Ultimately, the submissions made by counsel for the ICL and supported by submissions made by counsel for the mother are persuasive and in the Court’s view reflect orders to be made in the best interests of the child for the reasons discussed above.
Orders will be made accordingly.
The Independent Children’s Lawyer’s Costs
The ICL has had a significant engagement in the proceedings since being appointed.
The ICL seeks an order that the father pay his half of the ICL’s assessment of costs of $20,281.00 being $10,140.00. The mother was legally aided in the proceedings and the ICL is precluded from seeking an order for costs against her: s 117(4)(a).
Section 117 of the Family Law Act 1975 (Cth) provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs. Such threshold presumption as to each party bearing their own costs has no application to the ICL who is not a party.
Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.
The law is well settled that there is power under the section, subject to other statutory provisions referred to below, to make orders for or against the ICL and the Court may make such order as to costs of the ICL and in such proportions in relation to each of the parties as the Court considers just: (De Roma & De Roma [2013] FamCA 566).
Section 117(3) provides:
To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
Section 117(4) provides:
However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
The court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
Section 117(5) provides:
In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General. (emphasis added)
A question arises as to the actual meaning of the legislative intent for the Court to “disregard the legal aid funding” of the ICL, because that terminology is susceptible to ambiguity. As opined by Austin J in Gahen & Gahen (No 2) [2013] FamCA 936 at [8], it could conceivably mean either:
a)The Independent Children's Lawyer should be presumed to be unfunded, so as to generally incline the Court to order the parties’ contribution to the Independent Children's Lawyer’s costs; or
b)The Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children's Lawyer’s legal aid funding when determining whether to order the parties’ contribution to the Independent Children’s Lawyer’s costs.
In De Roma & De Roma (supra) Watts J explained why the former is the preferred connotation, since the purposes of the legislative provision was to protect the public purse.
The relevant considerations in relation to an order for costs are set out in s 117(2A). They are appropriate to consider in the context of the ICL’s application.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are the following:
a)The financial circumstances of each of the parties to the proceedings;
b)Whether any party has legal aid and the terms of any grant of aid;
c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g)Such other matters as the Court considers relevant.
The father is in part time employment and is also in receipt of Centrelink benefits.
He is not legally aided.
He was directed to file a financial statement and make submissions in response to the ICL’s application for costs by 11 August 2017. He did not do so. He has thus made no submission that an order for costs would cause him hardship.
It is, otherwise, relevant that the ICL has had significant involvement in the proceedings including but not limited to various appearances, issuing and inspecting subpoena, liaising with the family reporter. The issues in the proceedings were complex and the Court was greatly assisted by the ICL at trial. The ICL’s costs included fees actually paid to counsel together with service fees and conduct monies in relation to subpoena.
The order sought is modest in quantum having regard to the ICL’s involvement over a long period and the ultimate length of the trial.
It is appropriate that an order be made as sought by the ICL. The father will be given a reasonable period to pay noting that he may seek to reach some other accommodation with Legal Aid NSW by agreement.
I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 September 2017.
Associate:
Date: 14 September 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Injunction
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Natural Justice
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Procedural Fairness
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