Bakal and Kapicic (No 4)

[2014] FamCA 1105

FAMILY COURT OF AUSTRALIA

BAKAL & KAPICIC (NO. 4) [2014] FamCA 1105

FAMILY LAW – CHILDREN – Interim Orders – with whom a child lives – the mother sought orders that the child live with her pending trial – mother maintains the father poses an unacceptable risk of both sexual and physical abuse – concerns raised by both Families SA and the family consultant in relation to the mother’s home – mother’s ability to support a meaningful relationship between the child and the father – Independent Children’s Lawyer recommends removing child from “toxic” environment – consideration of best interests of the child – mother’s behaviour demonstrates lack of insight – child at risk of emotional and psychological harm in mother’s care – orders made for the child to live with the father and spend alternate weekends with the mother.

Family Law Act 1975 (Cth) s 60CA, 60CC

Goode & Goode (2006) 36 Fam LR 422

APPLICANT: Ms Bakal

RESPONDENT: Mr Kapicic

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4291 of 2011

DATE DELIVERED: 11 December 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 2 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms DuBarry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. Paragraphs 1 and 2.1, 2.2 and 2.3 of the orders made 27 May 2012 be suspended.

2. That the parties have shared parental responsibility for the child of the marriage B born … 2005 (“the child”) HOWEVER the father shall have sole parental responsibility for the child’s health and education.

3. That the child shall spend time with the mother as follows:-

   (a)During school terms each alternate weekend from the conclusion of school Friday to the commencement of school on Monday;

   (b)         During each mid-term school term holidays, for one week;

   (c)During the Christmas school holidays, with the mother for the second and fourth weeks;

4. That the child live with the father at all other times.

5. That the interim proceedings are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bakal & Kapicic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4291  of 2011

Ms Bakal

Applicant

And

Mr Kapicic

Respondent

REASONS FOR JUDGMENT

introduction  

1. On 6 November 2014 I made the following orders:-

   (1)Leave be given for the Minister, Department of Education and Child Development (Families SA) to be released and withdraw from the proceedings;

   (2)The report of Families SA dated 4 November 2014 shall become an exhibit in the proceedings namely “Exhibit 1”;

   (3)The Application in a Case filed 4 November 2014 be listed for hearing on 2 December 2014 at 10am;

   (4)The Application in a Case filed 5 November 2014 be listed for hearing on 10 November 2014.

2. On 10 November 2014 paragraphs 1, 2, 3, 4, 5 and 6 of the Application filed 5 November 2014 were dismissed with paragraph 7 of the said application and the Application filed 4 November 2014 adjourned for hearing to 2 December 2014.

3. There is no substance to paragraph 7 of the application filed 5 November 2014 and I intend to dismiss it and the application.

4. The Application filed 4 November 2014 seeks orders that B born in 2005 live solely with the mother prior to trial.  These reasons relate to the hearing of that application.

5. It is relevant to the interim orders sought by the mother that on 5 December 2014 orders for trial directions were made and the proceedings were listed for a final hearing on 1 June 2015.

6. Notwithstanding the short timeframe, Dr C (the family consultant) published her report as ordered on 28 November 2014 (“the assessment report”).

7. The mother relies upon her application supported by two affidavits filed 4 and 5 November 2014.

8. The father filed neither a response nor any affidavits.  The Independent Children’s Lawyer (“ICL”) through his counsel referred to the Families SA Report dated 4 November 2014 (Exhibit 1) and the assessment report of the family consultant being Annexure AMK 3 to the affidavit of the ICL filed 1 December 2014.

BACKGROUND

1. The lengthy proceedings are underpinned by a fierce parenting dispute between the parties.  There is significant factual dispute and the extreme negative view that each of the parties have in respect of the other is unrelenting, although it must be said that the father appears to have stepped back from the high level of emotion that the proceedings have engendered, with the clear outcome that he appears now to be focussing on the needs of the child.  The mother’s presentation on 2 December 2014 was florid in her criticism of the father.  Her unaltered position is that he poses an unacceptable risk of both sexual and physical abuse to the child.

2. Whilst I rely upon reasons delivered on 11 April 2014 and 6 August 2014, some further background is required to place the current application in context.

3. Final parenting orders were made on 27 May 2013 by consent.  A summary of the orders provided that the child spend time with the father each alternate Thursday from the conclusion of school to the commencement of school on the following Monday and for a sharing of the school holidays.

4. Orders were also made to provide for the ongoing treatment of the child by Dr A in relation to his urinary incontinence.

5. Whilst there was no admission, the wife was to seek assistance to manage her alleged hoarding and clean up her house without delay.  The father considered that the mother needed assistance to manage her psychological and psychiatric difficulties.  It was alleged that the mother was depressed.

6. Arising out of the submissions of the mother, it is informative to be reminded of a further provision of the final orders namely, that the parties would be restrained from abusing, criticising or denigrating the other party or their respective partners in the presence or hearing of the child or allowing any other person to do so.

7. The judgment delivered 11 April 2014 also dismissed the mother’s application seeking that the family consultant be disqualified on the basis of apprehended bias.   It is the same family consultant that has prepared the most recent assessment report integral to the submissions made on 2 December 2014 and the orders that I intend to make.

8. The mother is clearly dissatisfied with the continued involvement of Dr C and on 3 September 2014 she filed an Notice of Appeal seeking to set aside my orders of 6 August 2014. In the Application filed 5 November 2014, I interpreted the orders being sought as a stay of the operative orders pending the appeal. I heard that application on 10 November 2014 and declined to make orders as sought.  Ex tempore reasons were delivered and whilst I considered that the focus of the mother’s appeal should have been directed to the orders made 11 April 2014 namely the dismissal of the wife’s application seeking to disqualify the family consultant, the consequence of the application for stay of the orders made 6 August 2014 directly affected the operation of paragraph 4 of the orders namely:-

   That the parties and the child do attend upon Dr [C] for the purposes of the preparation of a family report to be commenced as soon as possible but to be completed and released by 31 October 2014, with the costs of the said interviews and report to be borne equally by the parties.

9. Following the unilateral decision of the father to retain the child contrary to the orders made by Dawe J on 11 July 2014, the mother sought by urgent application a recovery order.  That matter came before her Honour on 22 July 2014 and orders were made that the father return the child to the mother and that in the absence of his compliance a recovery order would issue.  The father’s time with the child was suspended between 22 July 2014 and 6 August 2014.

10. When the matter came before me I reinstated the operation of the orders of 27 May 2013, made an order that sought an addendum or update report to be prepared by the family consultant and released by 31 October 2014 and adjourned all outstanding matters including an oral application made by the Minister for the Department of Education and Child Development (Families SA) to be released from the proceedings for further consideration to 6 November 2014.  At that stage whilst counsel for the Minister raised certain concerns in respect of the mother’s home environment, further consideration was adjourned to 6 November 2014 when it was anticipated that the Families SA report would be available. 

MOTHER’S SUBMISSIONS AND AFFIDAVITS

1. The mother considers that the father is unsuitable to spend any time with the child whatsoever.  She asserts that she consented to the orders of 27 May 2013 “extremely begrudgingly” and did so because she was concerned that if the Court adopted the full suite of recommendations of the family consultant, this could result in the child spending more time with the father.  The mother also complains that both her lawyer and counsel in preparation for the hearing on 8 April 2014, either ignored or did not accept her instructions that the father should not have any time with the child because of his highly sexualised behaviour.  There is no application by the mother to call her solicitor and provide evidence as to the nature and extent of the mother’s instructions.

2. The mother then sets out a history which alleges that the father effectively abandoned the mother and the child even to the extent that he deliberately ignored the requests of the mother for the collection of umbilical cord blood available only in the first few hours of the child’s life.

3. The mother asserts that the father spent no time with the child and that his involvement was occasionally and when it occurred, he “intentionally neglected [the child’s] safety on many occasions”.  There is then a recitation of a range of examples leading up to the making of the orders wherein the mother considers that the father was either wilfully blind, negligent or of more concern, that he wanted to cause the child harm.

4. At paragraph 15 of the mother’s affidavit of 4 November 2014, her view of the husband is summarised:-

   It is my firm conviction that [the father] wants [the child] to die in what would seem to be “an unfortunate accident”.  [The father] has not ever wanted or shown any parental responsibility for [the child] since his birth.  I do not make this statement lightly, but am convinced due to the continual dangerous situations to which [the father] exposes [the child] as stated in this affidavit and in my previous affidavits.

5. That sentiment was and remains a common thread through the mother’s submissions.

6. The mother also alleges that the father has engaged in significant and extreme family violence, not just to the child whom she says is intimidated by the father, but to her and other persons including the father’s current fiancée.

7. The behaviour of the father in retaining the child contrary to the orders of Dawe J demonstrably has had a significant effect on the mother.  She mistrusts the father completely and considers that the period of separation between she and the child caused by the father has done irreparable damage.  The child was and remains emotionally distressed and anxious.

8. At paragraph 33 she states:-

   During the mother’s day weekend this year, from Thursday 8 May 2014 up to Sunday 11 May 2014, I witnessed [the child] becoming extremely distraught, extremely distressed and mentally and emotionally tortured whenever he telephoned and spoke with [the father] or when [the father] telephoned [the child].  I have never in my life as a [health professional], or as a parent, witnessed such extreme and extended emotional anguish and distress as I did when I saw [the child] talking with [the father].  I witnessed [the child] becoming so extremely distressed, shrieking, screaming and crying that I was utterly devastated and did not wish [the child] to ever go through emotional torture like that ever again.  I fear [the child] may never recover from the psychological torture he endured due to [the father’s] words and actions.

9. The mother considers that the father “has been dishonest in all or most of his places of employment”.  She considers he is a compulsive liar and is “pathological” in his presentation. During the relationship she says he was financially and physically abusive towards her.  She also alleges that he either has committed the crime of fraud or associates with others, in particular a member of his family who has been charged with fraud.  The mother considers that the sexualised behaviour that she attributes to the child’s presentation is as a result of the father’s inappropriate involvement.

10. She alleges that the father has abused and neglected the child, suffers from personality disorders namely, being a psychopath and narcissist and has “a complete inability to be honest”.  He has low or non-existent impulse control and a long criminal history which includes violence, stalking, fraud, theft, deception and a lengthy term of imprisonment.

11. She considers that the father has sexually assaulted the child and that the family consultant in the first report “failed to report to the Court in her family report the multiple assaults, multiple incidents of family violence and attempted murder of myself by [the father] which was witnessed by the child, [B] after I gave her detailed accounts of them all”.

12. In her oral submissions, the mother’s allegations were more startling.  She alleged that the father had deliberately cut the child’s hair short to remove the opportunity to forensically test the child’s hair for the presence of a powerful sedative GHB used by the father to enable him to sexually interfere with the child without the child being able to remember the assault.  The mother also agreed that whilst she purported to be cautious about it, families associated with other children in the child’s class would be entitled to gain the impression from her that the father was either a paedophile or presented as an unacceptable risk to their children.

13. I consider that the mother was being disingenuous in her submission that she did not directly allege to others including the child’s school administration that the father had sexually abused the child.  There is no doubt that the allegations of the mother were outrageous and entirely without motivation.  The mother has completely lost focus in respect of the father and I do not consider that based on her submissions it is likely she will ever accept that the father does not pose a risk to the child, or indeed, to other children.

14. For his part, the father considers that the child is at risk and that the mother is not able to provide a healthy environment for the child.  He remains entirely convinced of his view of the mother and presents as emotionally distraught.

FAMILIES SA REPORT

1. Following orders made by Dawe J seeking the intervention of the Minister pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”), a report dated 4 November 2014 was published. It details ongoing concerns that Families SA had with the state of the mother’s home and the environment in which the child lives. It had been a common focus of the proceedings that the mother was alleged to be a hoarder and that her home was potentially an unsafe environment for the child.

2. The report sets out a number of attempts made to attend and inspect at the mother’s home.  Until the more recent attendance by the family consultant, all efforts were unsuccessful.  The narrative in the report promotes the inference that the mother was avoiding an inspection of her premises.  Her position however is that she was not able to make appropriate arrangements taking into account a concern that she has as to the identity of the Families SA workers and that she had been recently broken into.  Security was important, but subject to a satisfactory arrangement being made, the mother was happy for a visit from Families  SA.

3. The author of the report communicated with officers of the primary school attended by the child.  The report details a number of concerns expressed by the school namely:-

   ·The child does not arrive at school before 9.30 am at the earliest;

   ·The mother sometimes remains engaged at the school having dropped the child off for an hour;

   ·That the mother reports that the father is stalking her and has been in her backyard at 3 am in the morning;

   ·That the mother appears to be overly involved and hyper-vigilant in the child’s attendance at school.

4. The report describes an incident involving plans by the father to hold a birthday party for the child that involved a sleep-over.  The mother apparently made it clear to parents of children who had been invited to attend that they should not trust their child in the care of company of the father.  The father was “distraught” in respect of the allegations.

5. It is reported that the school apparently had no difficulties with the father notwithstanding an earlier incident on 6 June 2014.

6. It is reported that the child has always been appropriately dressed and that his school attire is neat and clean. 

7. When asked what makes him happy and sad, the child responded that the mother is sad when he is going to the father, but happy when he remains with her.

8. The child was unequivocal that he enjoyed his time with his father and in his father’s home.  He appears to have a good relationship with the father’s partner and his step-sister.  The child would not be drawn as to the state of the mother’s home, but it is apposite to note that he does not have friends come over to his mother’s home for a play or a sleep-over but that he does at his father’s home.

9. In the recommendations, the author considered that the child’s circumstances have been the subject of comprehensive assessment by the family consultant in her first report dated 27 April 2014 and that Dr A in his letter of 22 January 2013 raised no concerns in relation to the child’s relationship with his father.  The school also had not observed any sexualised behaviour on the part of the child notwithstanding the persistent allegations of the mother.

10. There were concerns however in respect of the mother’s presentation.  They are summarised as follows:-

    The mother appears unable and unwilling to provide the correct level of care to the child (in relation to the state and safety of the family home).  However, the father’s home has no such concerns.  There appears to be safety issues for the child residing in the mother’s home if the report of windows being locked are true.  The mother’s mental health issues and hoarding issues need to be addressed to ensure the wellbeing and safety of the child.

11. The child had complained that the windows were locked and not able to be opened. 

12. It was the view of Families SA that the child should live predominantly with the father but spend limited time with the mother.  Only after the mother had addressed some of the issues in relation to the presentation of her home and her mental health, did Families SA consider that her time should be restored.

13. Ultimately however, Families SA considered that the presentation of the report in circumstances where the matter was before the Court provided no basis for the continued intervention.

REPORT OF FAMILY CONSULTANT

1. On 19 November 2014, the family consultant interviewed the mother at her home.  Eventually the family consultant gained entry to the home and was confronted by the maternal grandmother who it is recorded “made a strong and angry statement in front of [the child] that ‘he shouldn’t be away from school today’”: The family consultant records that she attempted to discuss with the mother and grandmother that it was not appropriate for the child to be exposed to any interchange about matters that involve the child.

1. The mother repeated her concerns that the child was not safe in the care of the father.  It is again recorded that the mother considers the father exhibits violent and abusive behaviours, that he stalked her and entered her property without permission and that he would scare and intimidate her and other people. The mother remains concerned that the father is a paedophile and that the child has been sexually abused by the father.  She gives an example that the child keeps pushing his bottom into the mother’s face with the implication that this must be behaviour arising out of the continued sexual assault of the child.  It is recorded that the mother is also fearful that the child will be kidnapped.  The mother considered that the father might kill the child or her and expressed frustration that nobody seemed to understand how dangerous the father is and the full extent of the threat that he poses to the child.

2. The observation of the family consultant are to the effect that the house generally was cleaner and tidier than at the time of the original visit but that  there were still piles of rubbish in the laundry and the backyard. The bath no longer had fish living in it and appears to have been cleaned, but the sequelae  of its previous state is that the child would not consider bathing in the bath tub and recalls vivid memories of mould all over the bath.

3. The family consultant further observed that the windows appear to have remained locked, apparently for security reasons.  The child was observed to have poor affect around the mother, was anxious and hesitant and would not make eye contact.  The child did not seem comfortable and “there is clearly not a trusting close relationship or any sign of a secure attachment between [the child] and his mother”.

4. The observations of the child in the care of the mother and her home are in stark contrast to the observations of the child in the care of the father.  The child was far more animated and was able to express clearly his delight in respect of the circumstances in his father’s home.  Importantly, the child appeared distressed describing the negative atmosphere in the mother’s home directed towards the father and the step-family.

5. The family consultant records:-

   [The child’s] verbal and non-verbal interaction with his father were quite confident and included openly talking and laughing together.  [The child] fully smiled and used a lot of eye contact and appeared to be relaxed in age appropriate proximity to his father.  [The child] was also energetic and relaxed whilst engaging with his step-mother and step-sibling.  [The child] genuinely joked and laughed with them indicating that [the child] had formed a positive relationship with them.  [The child] also followed his step-mother’s appropriate direction without showing any anxiety.

6. The individual child assessment revealed the child to be a sensitive, intelligent, quiet and cooperative child.

7. It is recorded that the child said he felt “sad” in his mother’s care when he is late for school.  He is not provided with basic school equipment, for example, pencils, rubber and glue and he appeared to be “unsupported and powerless” in his mother’s care.

8. Whilst the child was aware of the efforts the mother had made to clean up and remove some of the rubbish from her home, nonetheless the state of the premises was still poor.  The child informed the family consultant that he does not have a shower as the water isn’t working and as such he doesn’t wash himself when staying at the mother’s home but that he enjoys the ability to wash daily at his father’s home.

9. Of concern is information the child provides to the family consultant that on occasions when the mother appears to become very angry, she “pushes” the child and that on one occasion had pushed the child over.

10. In his mother’s care, the child described that he felt sad and that he is without support or comfort from his mother.  Again, this is to be contrasted with the positive support in his father’s home.

11. Consistent with the theme that the mother does not support the father’s relationship with the child, it is recorded that if the child wishes to speak with his father, the response from his mother is to unplug the phone.  The child is apparently in no doubt that his mother strongly dislikes and disapproves of his father. The relationship is undermined.

12. The family consultant considers that the child would benefit from spending more time in his father’s care.  The father appears to be a committed and reliable parent.  The risk is that he may develop “more serious emotional behavioural and social problems including the survival strategy of developing unhealthy and deceptive ways of trying to have his needs met” if he remains in the primary care of the mother.

13. It is clear that the internecine dispute between the parties has a significant and potentially lasting impact upon the child.  There is virtually no aspect of the child’s parenting upon which the parties are able to agree or confer. The mother considers that the father presents as an unacceptable risk to the child and I am satisfied that at present the mother is unlikely to change her entrenched attitude.

14. It has been recorded that the child is incontinent.  The parties have difficulty in maintaining an effective management program for the child, but of importance is that the child appears to have “lost hope” that his night-time urinary incontinence will ever be cured.

15. The recommendation of the family consultant is that the father have sole parental responsibility, principally to enable a consistency of health management and schooling.

16. Whilst it is proposed that the mother spend each alternate weekend with the child from 9.30 am Saturday to 6 pm Sunday, (extended if the Monday is a public holiday), it is the recommendation that even this time should be the subject of further condition and restricted to 9.30 am to 6 pm until the mother has addressed her hoarding issues and the safety hazards of having the windows locked.

17. It is also recommended that the mother engage in a range of clinical interventions and that the child receive appropriate treatment for his night-time urinary incontinence.

THE LAW

1. Part VII of the Act provides the framework within which parenting orders can be made on both an interim and final basis.

2. I note the remarks of the Full Court in Goode & Goode (2006) 36 Fam LR 422 at 442 as to the manner in which interim parenting disputes should be conducted:-

   The procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is significantly curtailed.  Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court looks also to the less contentious matters, such as the agreed facts and the issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstance of the parties and their children, and the parties respective proposals for the future.

3. I obviously bring to account that the best interest of the child is the paramount consideration pursuant to the making of any parenting orders pursuant to s 60CA and both the primary considerations as set out in s 60CC (2) and the additional considerations in s 60CC (3).

4. I do not propose to provide a seriatim recitation of the matters that I have to consider in s 60CC, but I give significant attention to the need to support a meaningful relationship that the child has with each of his parents tempered by the need to protect the child from abuse or risk whether that be physical or emotional.

5. I give weight to the nature of the relationship that the child has with each of his parents and in this case, whilst the child’s wishes have not been enunciated specifically, it would seem obvious from his remarks that he feels comfortable, safe and secure in his father’s home, but less so in his mother’s home.

CONCLUSION

1. It would be a significant change in the current arrangements to implement the recommendations of the family consultant.

2. I have however the advantage of a detailed report from the family consultant and some corroboration for the matters raised therein in the Families SA Report.

3. I am urged strongly by the ICL that orders need to be made urgently to protect the child from the detrimental and toxic environment in the mother’s household.  In short, whilst the child is not necessarily at risk of physical harm in the mother’s home, he is significantly at risk of emotional and psychological harm.

4. The mother is not able to support the child’s relationship with the father at all.  Ordinarily, it would be unusual to change a long-standing order particularly as there is now a final hearing set.  The current position however is different in that the mother’s behaviour demonstrates an almost total lack of insight and objectivity into the current needs of this child.

5. The mother’s home has become a fortress against an uncertain and ambiguous threat. 

6. The submissions of the mother appear unequivocal in terms of her view that the father is a sexual predator and that not just the child but other children are at risk.  There is no evidence to support such a contention and indeed everything that appears to emanate from the family consultant, the child’s school and the investigations of Families SA would speak to the contrary.

7. The child needs to have a safe and comfortable environment and be kept separate from the parental conflict.  At present that is not happening.  The concern of the family consultant is that the child has little emotional resilience and that there are already indicators in his behaviour that suggests the mother’s conduct is having a real and detrimental effect.

8. I am satisfied that the Court should place significant weight on the strong recommendations of the ICL, although in the circumstances of this case I consider that if the child resides primarily with the father, the adverse aspects of the mother’s environment will be significantly diminished.

9. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 December 2014.

Associate: 

Date:  11 December 2014.