Aslam and Render
[2017] FCCA 3180
•22 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASLAM & RENDER | [2017] FCCA 3180 |
| Catchwords: FAMILY LAW – Parenting – father serving very long gaol sentence – risk of harm assessment – whether in children’s best interest to spend face to face time with father – international travel. |
| Legislation: Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA |
| Cases cited: Goode & Goode (2007) 36 FamLR 422 |
| Applicant: | MS ASLAM |
| Respondent: | MR RENDER |
| File Number: | PAC 4350 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 6 December 2017 |
| Date of Last Submission: | 6 December 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 22 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Reid |
| Solicitors for the Applicant: | Emmaus Legal |
| Appearing for the Respondent: | In person |
ORDERS
The mother shall have sole parental responsibility for making decisions in relation to the long term welfare and development of the children.
The children X born (omitted) 2005 and Y born (omitted) 2009 shall live with the mother.
The mother is at liberty to remove the children from the Commonwealth of Australia from time to time without the need of the written consent of the father for such travel.
X born (omitted) 2005 and Y born (omitted) 2009 are permitted to travel internationally without the need for the consent of the father to be provided to the issue of a passport to X born (omitted) 2005 and Y born (omitted) 2009. The mother shall be the only person with ‘parental responsibility’ of the children X born (omitted) 2005 and Y born (omitted) 2009 for the purposes of applying for, and being issued with, an Australian passport for X born (omitted) 2005 and Y born (omitted) 2009.
The mother shall within 28 days provide a designated telephone to the children for the purpose of communicating with the father between 1pm and 3pm each Saturday and the mother shall within 28 days provide the father with the telephone number for such designated telephone.
Such telephone communication is suspended in the event that the children are outside of the Commonwealth of Australia.
The mother is to retain a post office box such that the father can send correspondence to the children, and to provide the father with details of the post office box within 28 days.
The father is restrained by injunction from denigrating the mother and/or members of her family in the hearing or in the presence of the children or by way of any written communication.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Aslam & Render is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4350 of 2016
| MS ASLAM |
Applicant
And
| MR RENDER |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to X who is 12 years old and Y who is 6 years old. X and Y are the daughters of the applicant Mother and the respondent Father.
The father is presently serving a very lengthy sentence for, inter alia, supplying a large commercial quantity of a prohibited drug. He was arrested and imprisoned in (omitted) 2012. He was denied bail and has been in gaol since his arrest. He is at a maximum security gaol.
The last time that X and Y spent time with the father was in late 2014. This was a visit with the father at the (omitted) Correctional Facility, where the father remains to this day.
In (omitted) 2015, the father was sentenced to 20 years imprisonment. On appeal by the Director of Public Prosecutions in (omitted) 2016, the sentence was quashed and in its place a sentence of imprisonment with a non-parole period of 21 years and six months was imposed, with the balance of the term of seven years and two months to expire in (omitted) 2040. The husband says he is presently appealing to the High Court. It is not clear whether special leave has been granted and what the status of the appeal is. However, at present, the circumstances are such that the children will be 35 and 31 before the father serves his sentence.
The present proceedings were commenced by the mother in September 2016, when she sought orders both interim and final parenting orders and an order permitting her to travel internationally with the children. Consequently, the father filed a Response and sought orders for time with the children.
In September 2016 the Court made orders permitting the mother to travel internationally with the children in (omitted) 2016 for a holiday to (country omitted).
On 29 June 2017, the children and mother attended a Child Inclusive Conference with a Family Consultant, pursuant to s.11F of the Family Law Act. The father did not participate.
The matter was heard on a final basis on 6 December 2017. Both parties participated, with arrangements being made for the father to appear via audio visual link from the gaol[1].
[1] Ultimately the matter proceeded with part of the hearing being conducted by way of telephone as there were technical difficulties with the audio visual link.
The Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. 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 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[2]
[2] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[3] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[4]
[3] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[4] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[5]. The Court may include[6] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[5] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[6] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
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 there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and 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.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]
[7] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[9] affirmed the legislative pathway.
[8] (2007) 36 Fam LR 422, (2006) FLC 93-286
[9] [2010] HCA 4
It is important that the Court sets out any findings of fact in respect of the allegations which have been made, and also in respect of the risk of harm to the children in each of the parents’ households. The Court does so below, where appropriate.
To make positive findings of fact, the Court needs to be satisfied on the balance of probabilities as to the existence of those facts. The degree of satisfaction required cannot be based on inexact proofs, indirect testimony or indirect inferences.[10] The obligation to carefully examine the evidence is a high one.[11]
[10] Murphy & Murphy [2007] FamCA 795 at [480]
[11] Ibid at [482]
The authorities and principles dealing with unacceptable risk of harm are well known.
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather that some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of risk and whether, with without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard. [12]
[12] Richards & Brown [2011] FamCA 662 but referring to Johnson & Page
The issue however, is not simply about the risk of harm, it is about the nature of the risk, the degree of risk, what might be done about the risk and the balancing of assessed risks against the benefit of the child having a relationship with the parent against whom the risk of harm is alleged to be unacceptable.[13] The issue is the extent of the risk and the things that might be done reasonably to alleviate (not eliminate, but alleviate) the risk.[14]
[13] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [58]
[14] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [56]
The more serious the consequences the higher the risk even if the odds of this happening of the relevant event are comparatively low.[15] However, once a finding of unacceptable risk of harm is made, “the finding can come down between parent and child like an iron gate that no subsequent efforts can raise.[16]”
[15] Per Carmody J in Murphy & Murphy [2007] FamCA 795 at [383]
[16] Napier & Hepburn [2006] FamCA 1316 per Warnick J at [114]
Best Interests Considerations
The mother makes very serious allegations of family violence. The father denies all allegations and indeed, he denies that the relationship was anything other than ideal, even after his arrest and when the mother took the children to visit him in gaol.
The mother’s evidence is as follows:
12. From the time of my marriage to Mr Render he was often verbally abusive to me and would say to me (usually in the (omitted) language) “you are pathetic”, “you are stupid”, “fuck you”, “fuck your dad’s grave”. Mr Render also would threaten me with violence. On many occasions he has said to me words to the effect of “you are only worth one thousand dollars, I will pay someone $1,000.00 to kill you”.
13. Mr Render was also physically abusive to the child X. I have seen him hit X to the point that her mouth was bleeding and she had bruises on her body. The children and I lived in fear of Mr Render. I was constantly in a state of stress and fear because anything could aggravate him and cause him to lash out either verbally or physically.
14. After was imprisoned, whenever Mr Render telephoned me, he would demand that I visit him with the children. He would say to me words to the effect of “Get here Ms Aslam, bring the kids here or I will put you in a misery that you will not get out of” and “I can send anyone to deal with you. I will kill you”. Because I was in fear for myself and the children I felt that I had no choice but to comply with Mr Render’s demands.
15. When visiting Mr Render in gaol he was verbally abusive on every occasion. He wold say words to me such as “you’re dumb, you’re stupid”. He said to me “I’m going to send people to deal with you unless you keep doing what I tell you to do”, “I will kill you”, “I will tell everybody you’re a whore”. These things were said in the presence of the children. The children were very scared and visibly upset. They would cry and tell me that they did not want to visit the father again.
16. During the time that I was visiting him with the children, Mr Render was saying to me words to the effect of “I have bought a house in (country omitted). I want you to go there with the children. When I get of gaol I will join you there”. I was very frightended about travelling to (country omitted). Mr Render’s family all live in (country omitted) and I was in fear that if I travelled there with the children Mr Render’s family would take the children from me and claim custody. The law in (country omitted) is such that children are the property of the father and the father’s family. I was very frightened that I would lose my children. During our marriage Mr Render often threatened me with taking the children away from me. He would say words to the effect of “I’m going to send you to (country omitted) and lock you up there. I will take the children away from you and you will never see them again”.
17. About three years ago, one of the last times that I visited Mr Render with the children, he was angry that I was not complying with his demands to contact his solicitor and make statements, which were not true. I was refusing to do that. On that occasion I stood up to leave. He grabbed my arm very roughly and said to me “sit down. You have one week to change your mind. If you don’t do it I will ruin your life and your mum’s life”. He also said to me “I’m going to tell everyone you’re a whore”. The children were distressed, they were crying loudly. X said words to the effect of “I don’t ever want to come here”. Y said words to the effect of “Please I want to go”.
20. From the time that Mr Render was imprisoned my feelings of fear for my safety and the children’s safety worsened. I did not feel safe with the children in my home. There were a number of occasions where things happened which were very frightening and intimidating for the children and I. For example, I would wake up in the morning and see that the garage door was opened and the car doors opened. Mr Render’s brother Mr T would come knocking loudly at the door either after the children’s bed time or at around the time I wanted to put the children to bed, yelling at me “You’re a whore”. On one occasion he also said to me “it was so easy to hack into your phone. I did it via Bluetooth. I did it so you know that you are always under our control because you will always be our property.
21. I was very frightened and always thought that I was being watched and followed. Mr Render had said to me often during my visits to him “I have people watching you. I have told Mr T to control you”. I fear that if Mr Render knows my whereabouts or my movements with the children, that the intimidation and threats from him and his brother will start again. I also fear for my children’s safety because he has in the past threatened that he will take the children from me and I will not see them again.
22. On one occasion a car was following me and I was very frightened. I took note of the registration number and reported it to the police.
23. I reported all these incidents to the police and the police advised me that these occurrences were typical of intimidation tactics that the police see in drug related and gang related matters. The police visited Mr T on 3 occasions and warned him not to approach me or my property.
The children expressed to the Family Consultant as follows:
a)X reported that her memories of living with the father were that he was often not at home, and that when he was, he was usually angry and she could hear him yelling at the mother.
b)X also said that she remembers the father hitting her and locking her in her room, and that when he was angry he would “throw stuff around”.
c)During the visits to gaol, X said that the father did not show any interest in her and that he would “just shush us and tell us to go the playground and yell at mum”.
d)X also reported that after the father’s incarceration when the mother and the children lived with the paternal uncle and his family, the uncle and his wife were verbally abusive towards the mother and that her cousins would often bite and hit her and her sister, and “mock” them.
e)When X was asked about her paternal grandparents, she said that she had seen them recently and that they were not very interested in her or her sister, and tried to make excuses for the father’s behaviour saying “he’s just angry, just go see him, this is normal” and that she interpreted this to mean that everybody fights and that the fights between her parents were normal.
f)X also told the Family Consultant that the father had threatened to kill the mother and that she would like to go to (country omitted) to visit her family but only if she was sure she could return to Australia.
g)Y does not remember her father, except that he has dark hair and dark eyes.
The children have not had any face to face time with the father for three years. The last time they went to visit him in gaol they said to the mother “I don’t want to visit dad again… It’s a terrible place and I don’t want to go back there”. The Court accepts that the children have expressed such sentiments to the mother.
The father’s answer to the children’s views is that the mother brainwashed the children.
The Court does not accept the assertion made by the father that the children were brainwashed. The father did not cross-examine the Family Consultant who wrote the s.11F Memorandum, and such matters were not put to the mother. There is no basis for the submission and indeed, there is no basis for such a finding.
Тhe Court accepts the mother’s evidence in relation to the family violence, and finds that the father did engage in physical violence against X during the parties’ relationship, that he threatened and intimidated the mother both during the parties’ cohabitation and after he was incarcerated, and that the father’s family engaged in threatening and intimidating tactics against the mother.
As such, the Court finds that the children will be placed at an unacceptable risk of harm if they were to spend any face to face time with the father:
a)The father has engaged in threatening and intimidating behaviour, which has continued since his incarceration;
b)The child X has memories of the father’s physical abuse of her and verbal abuse of the mother;
c)The father’s family members have engaged in intimidating and threatening behaviour of the mother and the children; and
d)The children have expressed strong wishes not to spend time with the father at a correctional facility.
The mother has since the father’s incarceration, taken the children to spend time with him. She has, the Court finds, demonstrated an appropriate attitude towards her responsibilities of parenthood and that despite the duress and intimidate suffered at the hands of the father, she has attempted to foster a relationship between the father and the children, and will continue to do so notwithstanding the fact that the children will not see their father out of gaol until their mid adulthood.
The parties were married in (country omitted). The father is of (nationality omitted) background. The mother’s background is not stated, although she lived in (country omitted) prior to moving to Australia.
The father says:
It is important to me that my daughters have contact with me so they know about my life story and their family background and the (omitted) culture. Even though they were both born in Australia and call themselves “Australian”, they still have (nationality omitted) blood and it is good for them to know their roots.
It is also important for me to speak to my daughters while I am in prison because it helps to do my time. I do not want my daughters to be punished because I am serving my sentence.
The children of course, will have the opportunity of learning about their culture and background from the mother, she at least speaks (language omitted), who is also of a similar cultural background. The difficulty is that the mother has had to cut off contact with the (nationality omitted) communities in Sydney, and that she has moved to a different area without providing detail to any of her former relations. In any event, this matter is of little weight in all of the circumstances.
On the other hand, the father’s insistence on seeing his children because it will help him do his time, is strong evidence of his priorities, namely that he prioritises his own needs above those of the children. The father is completely dismissive of the children’s wishes and indeed tried to impress upon the Court that the children have expressed strong wishes to him to see him. The mother of course gives evidence to the contrary, and the Court accepts the mother’s evidence over that of the father where the two are in dispute. The mother gave her evidence in an open and forthright manner, and to add there was little cross-examination and challenge of her evidence by the father.
Maximum security gaols are no place for children to visit, even in the best of circumstances. These two children have not had a positive relationship with the father and the time that they have spent with him while he has been incarcerated has not been a positive experience for them. To put them in a situation where they and their mother have to travel to (omitted) Correctional Facility on a regular basis over the course of the next many years is not an order that the Court considers is in the children’s best interest.
The mother submits to the Court that the children should have the opportunity of communicating with their father, and for this reason she submits to the Court that orders for the children to have telephone communication with the father on a regular basis, as well as to receive cards and gifts from the father are orders in the children’s best interest. Such orders will ensure that the children retain a relationship, and know their father. At the same time the orders will ensure that the risk to the children will be minimized.
Parental Responsibility
Not only is the presumption of equal shared parental responsibility rebutted due to the findings of family violence, but it is clear that the parties’ relationship is such that an order for equal shared parental responsibly is contra-indicated. Furthermore, the fact that the father will remain incarcerated for the duration of the children’s minority will make any order for shared parental responsibility highly impracticable.
As such, an order for the mother to have sole parental responsibility will be made.
International Travel
The Court had already made an order permitting the mother to travel internationally with the children for the purposes of a holiday in October 2016.
Given the findings and the orders which are herein made, the Court further finds that it is in the children’s best interest for the mother to have sole parental responsibility in relation to the issue of the children’s passports on a final basis and to be permitted to travel internationally with the children in the future, without the need for the consent of the father. The father did not make any submissions against such orders.
Indeed, given the findings about family violence, the Court finds that any action which would require the mother to notify the father of the children’s residence (and consequently her residence) for the purpose of obtaining consent for passports and/or travel would place both the mother and the children at an unacceptable risk of harm.
Conclusion
In all of the circumstances the Court finds that orders as set out at the forefront of these Reasons are orders which are in the children’s best interest.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 22 December 2017
0
8
2