AKOT & RAYAN

FAMILY COURT OF AUSTRALIA

AKOT & RAYAN

[2018] FamCA 18

FAMILY LAW – CHILDREN – Where the father seeks orders for equal shared parental responsibility and for the children to spend time with him unsupervised – Where the mother seeks sole parental responsibility and that the children have no contact with the father – Where the father assaulted the mother in 2014 causing serious injury – Where the children witnessed the assault – Where the father has not spent time with the children since the assault occurred – Where the presumption of equal shared parental responsibility does not apply – Where the Court finds that the father is an unacceptable risk to the children – Where it is ordered that the mother have sole parental responsibility for the children, that the children live with the mother and spend no time with the father.

FAMILY LAW – CHILDREN – Relocation – Where the mother seeks orders for her to relocate with the children to Melbourne – Where the father assaulted the mother in 2014 causing serious injury – Where an order has been made on a final basis restraining the father from spending time with the children – Where the relocation is allowed.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 65DAA

Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Stott & Holgar and Anor [2017] FamCAFC 152

APPLICANT:

Mr Akot

RESPONDENT:

Ms Rayan

INDEPENDENT CHILDREN’S LAWYER:

Marsdens Law Group

FILE NUMBER:

SYC

281

2015

DATE DELIVERED:

23 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

13 and 14 June 2018

REPRESENTATION

COUNSEL FOR THE RESPONDENT:

Ms Stolier

SOLICITOR FOR THE RESPONDENT:

Rafton Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Beck

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Marsdens Law Group

Orders

The following parenting orders are made in relation to the children X born … 2008 and Y born … 2012.
All previous orders are discharged.

Parental responsibility

The mother shall have sole parental responsibility for the children.

Live with

The children shall live with the mother.

Spend time

The father is restrained from spending time with the children and from contacting the children except in accordance with Order 6 below.

Cards and gifts

The father is at liberty to send cards (not letters) and gifts to the children on their birthdays, Easter and Christmas only.
For the purposes only of facilitating the above order the mother shall provide to the father within 21 days a mailing address to which such cards and gifts may be sent by the father noting that such address is likely to be that of a third party.
The mother is to ensure that any cards or gifts sent by the father will be given to the children as soon as they are received.

Relocation

The mother is permitted to relocate the children’s residence to the Melbourne area.

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 Akot & Rayan 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 SYDNEY

FILE NUMBER: SYC 281 of 2015

Mr Akot

Applicant

And

Ms Rayan

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings which concern two children, X born in 2008 and currently aged 10 years and Y born in 2012 and currently aged six years.
The children’s parents are Mr Akot and Ms Rayan. For convenience I shall refer to them as “the father” and “the mother” respectively. They met when they were in high school in June 2006 and commenced a relationship.
Family violence is a key issue in this case. On 24 July 2014 the father assaulted the mother to the extent that the mother was required to be taken to hospital by ambulance. This occurred in the presence of the children. Following this incident the father’s time with the children was suspended.

Applications

The father seeks orders to the following effect:
·The parents have equal shared parental responsibility for the children;
·The children live with the mother;
·An unqualified suite of orders which would enable the children to commence spending short periods of (even unsupervised) time with the father over some months leading to the children spending time with the father each alternate weekend from after school on Friday to before school on Monday as well as half the school holidays and on special occasions;
·Changeover to occur at the children’s school or at Suburb U Mall;
·The father to be at liberty to speak with the children by telephone each Monday, Wednesday and Friday and to call between 6.00 pm and 7.00 pm;
·Provision of medical information and treatment as well as school information and reports; and
·Non-denigration restraints.
The mother seeks orders to the following effect:
·The mother have sole parental responsibility for the children;
·The children live with the mother;
·The mother be permitted to relocate with the children to the Melbourne area; and
·The father have no contact with the children.
The Independent Children's Lawyer (“ICL”) seeks orders to the following effect:
·    That the mother have sole parental responsibility for the children;
·    That the children live with the mother;
·    That the father is restrained from spending time with the children and contacting the children except in accordance with these orders;
·    That the father is at liberty to send cards and gifts to the children on special occasions such as birthdays, Easter and Christmas;
·    That for the purposes of the father sending cards and gifts pursuant to these orders, the mother will provide a post office box or mailing address within 14 days of the date of these orders, to which such cards and gifts may be sent by the father, noting that such address is likely to be a third party address; and
·    That the mother is to ensure any cards or gifts sent by the father will be given to the children as soon as they are received.

Family report

Ms B, Regulation 7 Family Consultant, made the following recommendations for final orders in her report dated 6 June 2016:
·Sole parental responsibility to the mother;
·The children live with the mother; and
·The children have no contact with the father unless the evidence leads to the Court being satisfied that there has been a significant change in the father’s capacity to regulate his emotions and control his impulses.

Background

The parties

The father was born in Country C in 1986 and is currently aged 33 years. He moved to Australia as a refugee on 23 September 2003. The mother was born in 1988 and is currently aged 30 years. The mother was born in City D, Country E, and arrived in Australia in 2002.
The parties have two children, X aged 10 years and Y aged six years.

Background facts

The parents met at a school event in June 2006.
In approximately January 2008 the mother told her parents she was pregnant and initially they required her to leave their home. She later returned to her parents’ home.
In 2008 X was born. X was originally named F however his name was changed to X in 2012.
On 26 June 2008 the father was interviewed by police due to allegations that he had sexually assaulted the mother. The father denies this allegation. On 10 December 2008 this matter progressed to a final hearing and the application was dismissed.
On 18 September 2008 the father filed an application to spend time with X. At around this time the mother was studying. The mother was living in Sydney with her parents who would take care of X while she was studying.
On 18 December 2008 interim orders were made by consent in the Federal Magistrates Court of Australia (as it then was) for X to live with the mother and spend time with the father four times a week for two hours supervised by a Contact Centre. This time was to progress to five hours each week unsupervised.
On 5 September 2009 the father changed his name from Mr G to Mr Akot. Mr Akot is the name of the father’s father.
On 2 February 2011 final orders were made by consent in the Federal Magistrates Court (as it then was) providing for the parents to have equal shared parental responsibility for X, for X to live with the mother and spend time with the father as follows:
(a)From 2 February 2011 until 30 April 2011 each Sunday from 9.00 am to 5.00 pm as well as additional time and special occasions;
(b)From 1 May 2011 to 30 April 2012 each alternate Sunday from 9.00 am to 5.00 pm and each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday as well as special occasions and two periods of block time of three consecutive nights;
(c)Thereafter from 1 May 2012 until the start of school 2013 each weekend from 9.00 am Saturday to 5.00 pm Sunday, special occasions and two periods of block time of five consecutive nights; and
(d)From the start of school in 2013 each alternate weekend from after school Friday until 5.00 pm Sunday progressing to before school Monday following four occasions, Monday night in the alternate week as well as half the school holidays and special occasions.
On 2 May 2011 the parents entered into a parenting plan for the parents to have equal shared parental responsibility, for X to live with the father and spend time with the mother on one Sunday once each month from 9.00 am to 5.00 pm, half the school holidays and special occasions. The mother states that she signed this agreement without legal advice and only so that the father would agree for both her and X to move to Canberra. It is the mother’s evidence that following the signing of this agreement she and X moved to H Town for six months. Regardless of the agreement, X remained living with his mother.
In mid to late 2011 the mother returned to Sydney and she, the father and X commenced to live together at Suburb J.
In 2012 the father commenced studying at K College. At approximately this time he was also working. He would generally work three days per week.
In 2012 Y was born.
In approximately December 2012 the mother went to visit her cousins in Melbourne with Y.
In 2013 X commenced kindergarten at L School. The father coached X’s sports team every Sunday.
In Easter 2013 the mother visited her relatives in Melbourne with X and Y.
Towards the end of 2013 the mother attended her cousin’s wedding in Sydney for five days. During this period the mother was home each morning and evening and the father cared for the children during the day.
On 24 July 2014 a very serious violent incident involving the parents occurred and the police were called. The father was arrested and charged with assault occasioning actual bodily harm to the mother and stalking and intimidating her. The police fact sheet states that the father committed the offences in the presence of the two children. This matter is highly relevant to the determination of these proceedings and I shall refer to it again below.
A provisional Apprehended Domestic Violence Order (“ADVO”) was obtained for the protection of the mother and children against the father on 25 July 2014.
On 1 August 2014 the father pleaded guilty to the charges made on 24 July 2014.
In August 2014 the father commenced counselling with Mr M at N Group focusing on anger management.
On 12 September 2014 the father was convicted and placed on a bond for two years. On 19 September 2014 an ADVO was put in place for two years for the protection of the mother and the children.
On 19 January 2015 the father filed an Initiating Application in the Federal Circuit Court of Australia. The father sought that the parents have equal shared parental responsibility for the children, that the children live with the mother and that the children spend time with him each alternate weekend, half the school holidays and on special occasions. He also sought orders that he be at liberty to phone the children at particular times each week as well as orders relating to schooling and notification of the children’s medical needs and welfare.
In late March 2015 the father attended X’s school and watched him in his cross country races. The father spoke to X and bought him an ice cream.
On 25 March 2015 the mother filed a Response to the father’s Initiating Application seeking that she have sole parental responsibility for the children, that the children live with her and spend no time with the father, and that she be permitted to relocate with the children to the Melbourne area.
On 26 March 2015 the matter was heard by Judge Monahan in the Federal Circuit Court. Interim parenting orders were made for the children to live with the mother and to spend no time with the father pending further court order. The time the children were to spend with the father was reserved and an order was made for the parties to complete all intake requirements at Suburb O Children’s Contact Centre.
On 20 May 2015 a Child Dispute Conference Memorandum to Court was prepared by Ms B.
In August 2015 the father commenced attending the V Group P course (“the P course”).
In May 2016 the mother changed X’s school.
On 5 June 2016 a Family Report was prepared by Ms B.
On 27 July 2016 the proceedings were transferred to this Court.
On 19 September 2016 the ADVO expired.
In late 2016 the father completed the P course.
From 17 January 2017 to 24 February 2017 the father spent time with his family in Country C.
On 27 April 2018 orders were made listing a final hearing for three days commencing 13 June 2018.

Credit

The father

The father was self-represented and English is his second language. But even taking account of these matters, the father appeared to have considerable difficulty answering questions during cross-examination.
On numerous occasions he did not provide any answer to the question. In particular, when detailed questions were asked by counsel for the mother, and by me, in relation to the violent incident on 24 July 2014, the father said that he had punched the mother once. He provided no other details which might have gone some way towards explaining the mother’s quite extensive and very serious injuries.
Ms B, the expert, said that it is possible that the father’s state of mind was such at the time of the violence that he is incapable of remembering any more details. The other possibility is that the father is endeavouring to minimise the seriousness of the assault. Whatever the explanation, in my view, the father’s evidence about the events of 24 July 2014 cannot reasonably be regarded as an accurate account. This also affects the reliability of his other evidence in my view.

The mother

The mother also had difficulty with the process of cross-examination. It might well be that cultural differences made it more difficult for both parents to present in a satisfactory manner during cross-examination. The mother appeared to be very distressed and she tended to be loquacious. I accept that she has a serious fear of the father and has the view, not unreasonably held, that he tried to kill her and might continue to hold such intention. Arrangements were made for the mother to give her evidence from a different courtroom. This allowed her to attend by video facility connected to my courtroom. Overall, I had a more favourable view of the mother’s evidence than I did regarding that of the father.

Ms B, Regulation 7 Family Consultant

Ms B is the expert who interviewed the parents and X and prepared a most helpful family report.
Ms B gave her evidence in a responsive, thoughtful and forthright manner. I do not hesitate to accept the veracity of her evidence. Where in these reasons I refer to her evidence it can be taken that I accept such evidence.

Submissions

The following submissions were made by each of the parties.

The father

It was submitted by the father that he has not seen his children for four years and that this has been painful for him. He said that he had completed a few courses to reflect on what he had done wrong and that he had taken responsibility for it. He submitted that whatever it would take he would do for his children. He would like the opportunity to spend time with the children again. He submitted that his children need to see their father in a way that he was not able to see his father.
He submitted that he is trying to do his best and that he is always looking to do his best and he would like the Court to make a fair decision.

The mother

It was submitted on behalf of the mother that the presumption of equal shared parental responsibility does not apply by reason of family violence. It was submitted that the incident of 24 July 2014 was extremely violent in nature, had a dramatic and long lasting impact on X (in particular) and the father has not taken any real steps to address that behaviour. It was submitted by the mother’s counsel that the mother raises other incidents where the father has been violent towards the mother including that he punched her while she was pregnant with Y.
In relation to time with the father, it was submitted on behalf of the mother that regard should be had to the recommendation of the expert that prior to contact being ordered there must be a significant change in the father’s capacity to regulate his emotions and control his impulses. It was submitted that no progress had been made by the father with regard to counselling and addressing his problems with abuse and anger. It was submitted that the expert had agreed that the father could not address his capacity to regulate his emotions and control his impulses himself due to the level of severity of his behaviours, particularly the incident in 2014. It was submitted that the father has done nothing beyond some counselling sessions as part of his criminal proceedings (and suggested to him by his lawyer) and some therapy with Mr M which is somewhat historical. It was submitted that he did not undergo cognitive behavioural therapy as recommended.
Counsel for the mother acknowledged that the father has completed 15 sessions of the P course. However, counsel drew the Court’s attention to Exhibit N of the father’s affidavit which is a letter from the V Group confirming the father’s attendance and stating that:
We urge the Court not to take [Mr Akot’s] participation in our program into account when making its decisions
Counsel referred to Ms B’s comment during cross‑examination that this sentence could be a general caveat but also referred to the father’s responses during cross-examination and submitted that his answers suggested that he did not readily take full responsibility for his actions. The mother’s counsel referred to the event on 24 July 2014 and how the father had admitted that he had punched the mother, but was unable to go beyond that in relation to his actions. It was submitted that this is not indicative of a man who has taken responsibility or taken on board the complexity of the issue of abuse and made changes. It was submitted by counsel that the Court will be very mindful of the fact that when asked about the mother’s injuries following the assault in 2014 under cross‑examination the father responded: “Have you seen my injuries?”
Counsel drew the Court’s attention to the negative impact on the mother of a reintroduction of time with the father. It was submitted that during cross‑examination the mother had said that she would not comply with the orders if she believed that the Court was putting her life and the life of her children in jeopardy. This is her firm belief having regard to the assault on 24 July 2014. It was submitted that Ms B had stated during cross-examination that X’s (proper) reintroduction to his father would involve a process that may take years and would need to involve the father’s engagement in therapy when, with respect, there is no evidence that he will engage in such therapy.

Counsel for the mother submitted that the mother does not agree with an order that the children receive cards and letters from the father due to a fear that the father may include in letters things that are harmful or that will wrongly inform the children. If the Court was at mind to make such an order, the mother requested that the communication be limited to that of gifts.
It was submitted that the mother wishes to relocate to Melbourne as she is currently in a situation of constant worry. She says that she is scared to go places most of the time when living in Sydney. The mother’s counsel submitted that the mother is very young, she has been subjected to violence most of her life and she is trying very hard to build a life for herself and her children free from those fears. The mother believes she can do this if the orders she seeks are made.

The Independent Children's Lawyer

The ICL sought that the father have no time with the children. It was submitted that those orders were not proposed lightly and that the ICL is cognisant of such orders meaning that the father would not have meaningful contact with his children until they are adults. It was acknowledged that the enormity of this cannot be underestimated. It was submitted that a recommendation of orders of this nature should only be made in extreme circumstances but the ICL believes that these circumstances warrant such orders.
Counsel for the ICL submitted that the need for the father to demonstrate that he is able to regulate his emotions and anger is critical. The ICL is not satisfied that this is the case. The following reasons were provided for this view:
(a)The father did not continue to engage Ms Q, his psychologist, for treatment;
(b)The father did not continue to engage Mr M for anger management therapy;
(c)While the ICL disagrees with the mother’s case that the father has not made any progress, the father has not progressed beyond the first step of engaging in the V Group course;
(d)The father has taken steps as recommended by his legal representatives and this could give an indication of his motivation. The ICL is concerned that he has not understood what is really necessary to ensure the children are not at risk;
(e)It is concerning that the father refers to the assault on 24 July 2014 as an “argument”; and
(f)The father stated during cross-examination after some probing that the sum total of the assault in July 2014 was one punch which flies in the face of the evidence about the extent of the mother’s injuries. The ICL submitted that one only has to look at the photographs attached to the mother’s affidavit to see that it is unlikely the injuries were caused by one punch. It is the failure of the father to come to grips with what he did which is concerning.
Counsel for the ICL submitted that the father should be able to send gifts and cards to the children as this would maintain a connection between them and their father.

The applicable law in parenting proceedings

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·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
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·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
·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
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA of the Act). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility for that child until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Subsection 61DA(1) of the Act provides that when making a parenting order in relation to a child 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 for the child.
Subsection 61DA(2) of the Act provides, in effect, that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Subsection 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by subsection 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, subsection 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in subsection 65DAA(3) of the Act.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286, and the High Court cases of MRR v GR (2010) 240 CLR 461 and Bondelmonte v Bondelmonte (2016) 259 CLR 662.

Family violence

Family violence is defined in s 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a)      an assault; or
(b)      a sexual assault or other sexually abusive behaviour; or
(c)      stalking; or
(d)      repeated derogatory taunts; or
(e)      intentionally damaging or destroying property; or
(f)      intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
Subsections 4AB(3) and (4) of the Act set out how a child might be exposed to family violence as follows:
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
There is no controversy in this case that the mother has been a victim of family violence and that the children have been exposed to family violence.
As indicated above, a very serious incident of violence was perpetrated by the father on the mother on 24 July 2014. Some of the details are as follows:
(a)The police were called by a neighbour;
(b)The police notes detailed the mother’s injuries as follows:
(i)Extreme swelling and bruising to the forehead;
(ii)Swollen shut black eye;
(iii)Cut to the inside of her lip;
(iv)Cuts to her forehead;
(v)Swollen hands with scratches; and
(vi)Bleeding inside the mouth.
The notes also record the mother as having said: “I think he is going to kill me”. It is also noted that the mother was conveyed by ambulance to R Hospital and that she did not make a formal statement to police due to her condition.
The children witnessed the assault on the mother and accompanied the mother to hospital via ambulance.
Ms B reported that the father said to her that he had not meant to hurt the mother or take her life.
Ms B reported that the mother said that she is concerned that the father is too rough with X and that he had also began to be too rough with Y. She described an incident where she states that the father hit X with a cord. During his interview by Ms B X said that his father once hit him with a cord when he did not share with his brother. He said that this made him both scared and sad.
There was no suggestion that X was coached to say this and generally I had a favourable view about the likely veracity of the mother’s evidence. Accordingly, I consider it more likely than not that in fact the father hit X with a cord as alleged.

Parental responsibility

As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them.
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
In my view, the first matter for determination is whether the presumption should apply.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child or another child who at the time was a member of the parent’s family. There is no issue that the father has perpetrated serious family violence against the mother and the children.
In these circumstances, I am satisfied that the presumption does not apply. I am also satisfied that equal shared parental responsibility would not be in the best interests of the children for the reasons which will follow.

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in subsections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in subsection 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

The additional considerations are set out in subsection 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Subsection 60CC(3)(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

X is currently 10 years of age. He reported to Ms B during his interview that his biggest feeling about his father is that his father might hurt his mother. She reported that X said that he does not want his father to be “near mum” or “near me”.
Y is currently six years of age. It was put to Ms B during cross‑examination by the ICL that Y has expressed interest in having contact with his father. Ms B opined that she was not surprised that Y was expressing curiosity about his father as he was so much younger when the assault occurred and he would be unlikely to have been able to recollect details nearly as well as has X.
It was submitted by the mother’s counsel that both children are of an age that little weight can be placed on their views. The ICL submitted that Y is keen and curious about his father but it must be kept in mind that he is very young at only six years old and accordingly the Court cannot place reliance on his views. The ICL submitted that X is still young at 10 years of age, however given that his views have been coloured by what he has witnessed and there is a real issue of trauma, the ICL would say that his wishes cannot be dismissed entirely.
I place little weight on Y’s views because of his young age. But I accept that some weight should be afforded to X’s expressed views.

Subsection 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

The children have been in the primary care of the mother since the assault occurred in July 2014. Ms B opined in her report that during the interviews the mother interacted with the children in an appropriate and affectionate manner.
The father was spending time with X and Y prior to the assault in July 2014. I accept that in the past he has been quite involved with the children. He took them to movies, attended X’s sports team events, took them to the park and enjoyed making a fuss of the boys on their birthdays.
The father has not spent any time with the children since the assault on 24 July 2014.
I accept that the nature of the relationship between the children and the father would have been impacted negatively by the events that took place in July 2014. It would appear that X’s relationship with his father has been seriously damaged by the violence, to the point where the child appears to be fearful of his father and does not want to have anything to do with him.

Subsection 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long‑term issues in relation to the child, to spend time with the child and to communicate with the child

The father has not had contact with the children since the assault of 24 July 2014. The mother has made all major decisions for the children since this time and the father has not been provided with the opportunity to be involved in decision making.

Subsection 60CC(3)(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

The mother reported that presently she receives $20 per fortnight in child support payments.
The father is paying $49 per fortnight in total for child support. The father has a child of a previous relationship. The $49 payment is for all three children.

Subsection 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

The risk of a change of circumstance whereby the children would begin to spend time with their father was outlined by Ms B on pages 19 and 20 of her report as follows:
[X] and [Y] witnessed a brutal attack on their mother by their father, during which [X] feared that his mother would be killed. As a consequence, it causes [X] considerable anxiety to think of his father being in proximity to his mother. This is understandable. [Y], while his ability to coherently recollect the event is likely to be less than his brother’s, would have also, without doubt, been traumatised by what occurred. Important questions to be answered in relation to the boys, therefore, pertain to whether bringing them back in contact with their father runs the risk of reactivating the trauma for them and whether it would also create too much anxiety for them about their mother’s safety…Based on the Family Consultant’s assessment of [X] and the mother’s views regarding his temperament, the Family Consultant formed the opinion that he would, at this point in time, find it traumatic to be reintroduced to his father and that, if it were to occur, it would need to happen with careful preparation and in circumstances in which the child could feel reassured of absolute safety. However, if the boys were to be reintroduced to their father and were he to once again behave in unpredictable and frightening ways then both of the boys would be at risk of significant emotional and psychological damage and future mental health problems.
…
In addition to the possible impact on and risks to the children of being reintroduced to and spending time with their father there is also how this, if it were to occur, might affect [Ms Rayan] and, in turn, her relationships with the boys. Reintroduction of the boys to their father would bring [Mr Akot] back into [Ms Rayan’s] world, which in itself would be likely to arouse anxiety. If [X] and [Y] were then to spend regular time with [Mr Akot], it would not only make him a constant presence in [Ms Rayan’s] life but would also bring with it increased anxiety for her about the boys.
The mother seeks that the children relocate with her to Melbourne. This would represent a significant change in the children’s circumstances. The mother says that she has a large support network in Melbourne made up of 13 cousins, three uncles and three aunts along with a large community.

The mother provided evidence during cross-examination that the maternal grandmother lives in Sydney and that she assists the mother in caring for the children. The maternal grandmother does not plan to move to Melbourne. However, the mother said during cross-examination that other relatives will be available to assist her to care for the children in Melbourne.

Subsection 60CC(3)(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

If the mother’s application for the children to spend no time with the father regardless of whether she is able to relocate to Melbourne was to succeed, this would not be a relevant consideration. If the mother was permitted to relocate to Melbourne and the Court determined that it was in the children’s interests to spend time with their father in Sydney, there would be the practical difficulties of distance and expense involved.
On the other hand, the father opposes the mother’s application to relocate and seeks that the children remain in Sydney. No evidence was provided about any practical difficulties of the children spending time with each parent if the parties were to remain in Sydney.

Subsection 60CC(3)(f) – the capacity of each of the child’s parents and 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

As Ms B observed, both parents have been socially and unilaterally dislocated at relatively young ages. They have had to familiarise themselves with, and adapt to, a foreign culture and social environment and to bear with cultural misunderstandings whilst doing so. Ms B said that while both of them had aspects of their childhood and/or adolescence interrupted, the mother had the advantage over the father of having been younger and having had all of her immediate family with her throughout. On the other hand, the father did not have his parents and siblings to anchor him through his inevitable disorientation in a foreign culture. Accordingly, Ms B opined that he was vulnerable to becoming angry, depressed and troubled.
The mother has solely cared for the children for the past four years. She is their primary parent. It would appear that she has been parenting the boys well.
There is a concern that the father’s involvement with the children may impact the mother’s capacity as their primary carer. Ms B raised a concern in her report that the father returning into the lives of the children could impact upon the mother and her relationships with the children. The mother said under cross‑examination that in Sydney she is scared to attend places on her own due to a fear of the father. Under cross-examination Ms B agreed with counsel for the ICL that it is very important for the mother to feel safe and that her feeling of safety affects her ability to parent.
A number of concerns have been raised about the father’s mental health and whether X and Y would be safe in his care. Ms B said in her report of 6 June 2016 that the father continued to present as being somewhat depressed, although this was less so than at the time of the Child Dispute Conference.
In relation to the father’s capacity to care for the children, Ms B opined the following in her report at paragraph 41:
Aside from the issue of the children having witnessed violence against their mother, there is also an issue regarding their father’s alleged harsh or “rough” treatment of the children, particularly [X], from time to time. If the mother’s description of the father’s behaviour towards [X] is an accurate portrayal of what happened then it would suggest that the father’s expectations of the child have been unrealistically high and that he experiences difficulties with impulse control in certain circumstances. If he has not received any help to modify his expectations or has been unable otherwise to modify them, this would constitute a risk factor for [X] and possibly [Y], particularly if the father tends to respond to perceived bad behaviour with physical discipline. A combination of physical discipline of a child and poor parental affect regulation and impulse control increases the risk of physical, as well as emotional injury, to the child.
As indicated above, I accept that it is more likely than not that the father hit X with a cord. In my view, this tends to support the mother’s allegations that the father has treated the children in a “rough” manner.
Ms B further reported that in order to adequately address the father’s difficulties with affect regulation and impulse control it is necessary to further explore the aetiology of these symptoms. She stated that the reason for the father’s behaviour would have bearing on the type of professional assistance the father would actually need. She said that if, for example, he has experienced complex or severe trauma, which as a refugee he might have, then some of his difficulties with affect regulation and impulse control could be symptomatic of this, in which case anger management would be insufficient for his needs. Following the release of the report in June 2016 the father has not obtained further assistance beyond the V Group course.
Counsel for the ICL raised with Ms B during cross-examination that the father had difficulty answering questions about the assault in July 2014 when he was cross-examined. Ms B opined that it was difficult to comment on why this occurred, however she wondered if the father had entered into a ‘blind rage’ during the incident in 2014, a mental state in which there was no mind operating at that time and therefore he may not actually remember exactly what happened during that period. She postulated that another explanation might be that he was avoiding answering questions due to shame. She made it clear that these were merely speculations on her part.
The father raised some concerns during submissions that the mother drinks alcohol and that she is not adequately caring for the children. This concern was not raised in the evidence. I do not make any adverse finding about these assertions.

Subsection 60CC(3)(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

The mother is from ethnic group S in Country C. The father was born in Country C and is part of the ethnic group T. They each arrived in Australia as refugees when they were children. It is important that X and Y maintain a connection to their cultural heritage.

Subsection 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting order under this Part will have on that right

This consideration is not relevant.

Subsection 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The mother has been the primary parent throughout the lives of the children.
In 2013 the mother left the children in the care of the father for five days during the day time so that she could attend a wedding despite her concerns for their safety in the father’s care. The mother said during cross‑examination that she was not happy to leave the children in his care at this time however she had to attend her family member’s event and she was trying to live a normal life. Ms B said during cross‑examination that this could demonstrate a lack of protective ability at that stage by the mother. However, Ms B also stated that the mother’s current assertion that she would not follow court orders if it placed the children at risk shows an improved protective ability.
The father has instituted these parenting proceedings in a hope to spend time with his children. He is eager to spend time with the children and to be a part of their lives. However, his past action of assaulting the mother in 2014 in the presence of the children reflects very poorly on his attitude to the responsibilities of parenthood.

Subsection 60CC(3)(j) – any family violence involving the child or a member of the child's family

This has been addressed above.

Subsection 60CC(3)(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 nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter

This has been addressed above.

Subsection 60CC(3)(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

There is such a vast difference between the orders sought by each of the parents that it is difficult to foresee what order would be least likely to lead to further proceedings.

Subsection 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

This consideration is not relevant.

Primary Considerations

As discussed above, there are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both of their parents. The second is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Greater weight is to be given to the second primary consideration. Ms B makes clear that the need to protect the children from risk in this case is the most important consideration. She states the following in paragraph 39 of her report:
This is a matter involving at least one episode of significant family violence. For this reason, the most important issue to be addressed in thinking about what might constitute appropriate parenting orders for [X] and [Y] is that of safety. There has been one documented physical attack on the mother by the father and the mother alleges one other earlier one of similar intensity, which, she said, was defused by a paternal family member. The trigger for the documented physical attack and the one alleged by the mother, as described by her, was the mother’s failure to do what the father told her to do. She also alleges verbal abuse of her by the father and that, in their early relationship, he had been sexually coercive. Leaving aside the undocumented, alleged physical attack and the allegation of sexually coercive behaviour, the intensity of the documented physical attack is worrying. If the mother’s description of the event is an accurate one then something in the father’s experience of the interaction between them led to an impulse in him to kill her. The father asserts that he had not intended to injure or kill her. If this is the case, it would tend to suggest either that he acted deliberately in order to punish the mother or frighten her into a more obedient attitude to him or that he was no longer in control of what he was doing, that is, he was in a blind rage. The apparent rarity of this intensity of physical attack in the relationship between the parents tends to suggest that there could be a level of unpredictability in the father’s responses to the mother and, if so, this could make the situation more dangerous. The nature of the violence and likelihood of recurrence if similar circumstances were to arise again require further exploration through evidence, as does the question of potential for lethality.
As indicated above, Ms B made the recommendation in her report that unless the evidence leads to the Court being satisfied that there has been a significant change in the father’s capacity to regulate his emotions and control his impulses, there be no orders for contact between the boys and their father. There was no evidence that the father had sought further mental health assistance following the release of the report.
Ms B has also opined that a reintroduction of time between the father and the children would result in the father being a part of the mother’s life. She stated that this could have an impact upon the mother and her parenting capacity and this in turn will impact her relationship with the children.

Conclusion

Parental responsibility

As stated above, because a parent of the children has engaged in family violence the presumption of equal shared parental responsibility does not apply.
Ms B stated the following in her report in relation to parental responsibility at paragraph 45:
With regard to the question of parental responsibility, given that the nature of the difficulties in the parental relationship includes violence and that the violence has been enacted in front of the children as well as allegedly towards them, there is a risk that an order for equal shared parental responsibility could lead to the children’s further exposure to conflict and violence. Such exposure would have serious consequences for the children’s future mental health.
I am satisfied that given the family violence and the communication difficulties between the parties, it is in the best interests of the children for the mother, as their primary carer, to have sole parental responsibility.

Time with the father

The father’s very serious assault of the mother in July 2014 has had a lasting impact on this family. X and Y witnessed their father assault their mother to the extent that X was worried his mother would not survive. X and Y went in the ambulance with their mother following the incident and Ms B reports that both of the children would have been traumatised by what they observed.
I have referred to the opinion of Ms B about the physical and psychological risks for these boys if they were to spend time with their father. It is clear that X has expressed a strong view that he does not want his father near him or his mother. Ms B formed the opinion that X would find it traumatic to be reintroduced to his father at this point in time and that such reintroduction could only occur following careful preparation, and in circumstances where X would be reassured of his absolute safety. Y has expressed to the ICL interest in seeing his father. Ms B said that this was not surprising because Y was younger when the assault occurred and his ability to coherently recollect the event is likely to be less than his brother’s. In my view, limited weight can be placed on the views of the children in this case. They are both young. In any event, if the Court were to determine that the children were at risk in their father’s care, the views of the children cannot combat the primary consideration of ensuring their safety.
The Court takes a cautious, child protective approach to managing risk to children. There is no question that the incident in July 2014 was very serious and that the father’s acts of physical violence caused the mother to be hospitalised with serious injuries. I accept that the mother believed that the father was trying to kill her. The father informed Ms B that he had not meant to hurt the mother or to take her life. He said that he had been frustrated with her and did not know how to control his frustration.
I accept that it is more probable than not that the violent assault on the mother had a serious impact on X. The mother said that he was in shock and was scared. She said that he was unable to attend school for two weeks and that both boys would scream in response to any unexpected loud noise. In my view, this account is consistent with things which X said to Ms B. He said that he still does not feel his mother is safe and that his “biggest feeling” about his father is that his father might hurt his mother and that he does not want his father to be near his mother or near him. Ms B said that during the assault X feared that his mother would be killed.
Ms B also said that it was not clear to her exactly what form of professional assistance the father might actually need. She suggested that if the father had experienced complex or severe trauma, which she thought as a refugee he might well have, then some of his difficulties with affect regulation and impulse control could be symptomatic of that, in which case, she said attending an anger management course would be insufficient for his requirements.
The available evidence does not suggest that there has been a significant change in the father’s capacity to regulate his emotions and control his impulses since seeing Ms B in 2016. Accordingly, in my view, the Court is left in the position where it cannot be confident that if the father again encountered a situation where he became extremely frustrated, he would be able to control his impulsivity to act in a violent manner. I accept Ms B’s opinion that if the boys were in the care of their father and the father was again to behave in unpredictable and frightening ways, then both boys would be at risk of significant emotional and psychological damage and future mental health problems. In addition, the reintroduction of time between the father and the children would also significantly impact the parenting capacity of the mother which would, in turn, impact the children. In my view, in all these circumstances, for the Court to order that the children spend time with their father would place them into a situation which I would regard as being an unacceptable risk.
The concept of “unacceptable risk” was discussed by the Full Court of the Family Court of Australia in the matter of Stott & Holgar and Anor [2017] FamCAFC 152:
36.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].
37.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.
Clearly, there would be benefit for the children in having opportunity to endeavour to rebuild their relationship with their father. But for the reasons set out above, in my view, the risks to them involved in reintroduction to their father and spending time with him outweigh the possible benefits therefrom.
For these reasons orders will be made for the children to live with the mother and spend no time with the father.

Relocation

The mother seeks an order that she be permitted to relocate to Melbourne with the children.
I accept that the mother has been in a situation of constant worry living in Sydney. It is the mother’s evidence that she is unable to leave her house alone due to a fear of the father. I note the evidence of Ms B that it is important for the mother to feel safe and that this in turn will impact her ability to parent the children.
The mother has given evidence that if she is able to move to Melbourne she will be surrounded by a large support network made up of 13 cousins, three uncles and three aunts along with a large community. In the light of such family support one would expect that the mother’s capacity to parent the children would be enhanced by her relocation.
As indicated above, the children’s best interests require that an order be made for the father to have no time with the children. Therefore, the relocation of the children to Melbourne will not have an impact on parenting arrangements for the children.

Accordingly, an order will be made permitting the mother to relocate to Melbourne with the children.

Cards and gifts

The ICL has sought an order that the father be at liberty to send cards and gifts to the children on special occasions such as birthdays, Easter and Christmas.
Counsel for the mother submitted that the mother would have difficulty with receiving cards and letters due to a fear that the father may include in letters things that are harmful. She would prefer that there be no contact. If the Court was of a mind to make an order, the mother requests that the correspondence be limited to gifts with no written material.
When asked in cross-examination, Ms B stated that she did not have a problem with the father being able to provide cards and letters. She said that this would not be damaging in any way for the children if the mother is able to manage it.
Counsel for the ICL submitted that if the father is to have no contact with the children then at least cards and gifts would allow there to be some connection. While it is a small connection, counsel submitted that it is important that the children know who their father is and that he cares about them.
Bearing all this in mind, I shall make an order that the father can provide cards and gifts only to the children on special occasions.

I certify that the preceding one-hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 23 January 2019

Associate:

Date: 23 January 2019

[2019] FamCA 18

23 January 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness