BANDI & DHAWAN

[2020] FCCA 2716

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANDI & DHAWAN [2020] FCCA 2716

Catchwords:
FAMILY LAW – Parenting – interim orders – serious allegations of family violence – assessment of risk – best interests of child – orders made for the children to spend supervised time with the father.

Applicant: MR BANDI

Respondent: MS DHAWAN

File Number: PAC 1430 of 2020

Judgment of: Judge Obradovic

Hearing date: 14 September 2020

Date of Last Submission: 14 September 2020

Delivered at: Parramatta

Delivered on: 2 October 2020

REPRESENTATION

Counsel for the Applicant: Mr Schonell

Solicitors for the Applicant: Adam Jones Solicitor

Appearing for the Respondent: Mr Pomare

Solicitors for the Respondent: The Norton Law Group

Counsel for the Independent Children's Lawyer: Ms Rebehy

Solicitors for the Independent Children's Lawyer: Shedden & Associates

PENDING FURTHER ORDER

1. Orders 2, 3, 10 and 11 made by consent on 25 May 2020 are discharged.  

2. The children X born in 2010 and Y born in 2012 shall spend time with the father supervised by an appropriately qualified Supervision Service as follows:

   (i)each Wednesday from the conclusion of school or 3:30pm to 6pm; and

   (ii)each Saturday from 9am to 4pm; or

   (iii)if the Supervision Service is not able to supervise the father’s time with the children in accordance with (i) and (ii) above, then the children shall spend time with the father for at least 2 hours each week at times suitable to the parties and the Supervision Service.

3. Within seven (7) days from the date of these Orders the parties shall register with the following Supervision Services with a view to obtaining an offer which provides for a service where the father shall spend supervised time with the children:

   (a)B Contact Centre;

   (b)C Contact Centre;

   (c)Region D Contact Service; and

   (d)At such other centre or agency agreed between the parties and the Independent Children’s Lawyer in writing.

4. Each party shall do all acts and things necessary to:

   (a)Attend any appointments for assessment for suitability for supervision of the time the children spend time with the father;

   (b)Participate fully in the assessment;

   (c)Comply with any appointments made by the Supervision Service for supervised time;

   (d)Comply with all reasonable policies and rules of the Supervision Service; and

   (e)Comply with all reasonable requests or directions of the staff of the Supervision Service.

5. The father shall pay the cost of the Supervision Service nominated or other agreed supervision agency.  

BY CONSENT, IT IS ORDERED THAT:

1. Dr E or Dr F be appointed as single expert to prepare a family report pursuant to Chapter 15 of the Federal Circuit Court Rules.

2. The letter of instruction be settled as agreed between the parties and failing agreement, that the letter include:

   (a)Whether the children are at risk of being exposed to any physical, harm, from being subjected to or exposed to abuse, neglect or family violence;

   (b)Whether the children are at risk of being exposed to psychological harm by either of the parents, including exposure to negative reinforcement by one parent against the other.

   (c)Any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

   (d)The relationship between the children and each other and with each of their parents and any other relevant person;

   (e)The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;

   (f)The capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs;

   (g)The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person);

   (h)The effect on the children of any family violence to which they may have been exposed.

THE COURT FURTHER ORDERS THAT:

1. The Independent Children’s Lawyers is granted liberty to have the matter restored to the list on 48 hours’ notice.

2. The matter is listed for directions at 2:15pm on 25 January 2021.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1430 of 2020

MR BANDI

Applicant

And

MS DHAWAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are the Reasons for Judgment in relation to interim parenting proceedings concerning two children, X born in 2010 and Y born in 2012.

2. The applicant in these proceedings is the father, Mr Bandi born in 1973 and the respondent is the mother, Ms Dhawan born in 1976.

3. The father commenced proceedings pursuant to an Initiating Application filed on 23 March 2020 together with an Affidavit and a Notice of Risk. The interim orders sought by the father in the Initiating Application, amongst others, were that the parents have equal shared parental responsibility for the children and that the children live with each parent on a week about basis. That application was given a return date of 27 May 2020.

4. The mother filed a Response to the father’s application on 20 May 2020 together with an Affidavit and Notice of Risk.

5. The matter came before the Court on 27 May 2020 for the first time. On that date the Court made orders by consent that:

   a)the children live with the mother;

   b)the father spend time with children as agreed, and failing agreement as follows:

   i)on each Saturday from 9am until 6:30pm;

   ii)on the following special occasions Diwali and Christmas Day for a period of three hours as agreed between the parties, and failing agreement from 2:30 PM until 5:30 PM on these days;

   iii)On Father’s Day from 9 AM until 5:30 PM

   c)the father enrol and complete a parenting course dealing with anger management;

   d)the parties enrol and attend family therapy;

   e)the father be restrained from consuming alcohol while the children are in his care and 24 hours prior to the children coming into his care; and

   f)the parties be restrained from physically disciplining the children, verbally abusing the children and leaving the children unattended when the children are in their respective care.

6. The Court further ordered on that date that the parties attend a Child Inclusive Child Dispute Conference with a Family Consultant and that an Independent Children’s Lawyer be appointed for the children. The matter was set down for directions on 14 August 2020.

7. On 16 July 2020 the mother filed an Amended Response together with an Affidavit and Financial Statement seeking property orders. On 11 August 2020 the father also filed an Amended Initiating Application together with an Affidavit and Financial Statement seeking property orders, which are not the subject of these interim proceedings.

8. The matter was next heard on 14 August 2020 and the Child Inclusive Conference Memorandum (“the Memorandum”) prepared by the Family Consultant was released in Court to the parties. Shortly after the release of that Memorandum the mother’s solicitors made an oral application for the children’s time with the father pursuant to Orders made on 27 May 2020 be suspended. That Order was made by the Court and the matter was set down for interim hearing on 14 September 2020, these are the Reasons in relation to that hearing.

Competing Proposals

1. The father proposes[1] that the children live with the mother and that the children spend time with him on the following basis:

   [1] The father relied on at the interim hearing the proposed Minute of Order provided to the Court by email on 14 September 2020.

   a)For a period of four weeks:

   i)on each Wednesday from the conclusion of school or 3:30pm to 7pm; and

   ii)on each Saturday from 9am to 6:30pm

   b)Four weeks from the date of the Orders:

   i)on each Wednesday from the conclusion of school or 3:30pm to 7pm; and

   ii)on each Saturday from 10am to Sunday 4pm.

   c)On Diwali and Christmas Day for a period of three hours as agreed, and failing agreement from 2:30pm to 5:30pm; and

   d)On Father’s Day from 9am to 5:30pm.

2. The father also seeks an order for FaceTime or Skype calls with the children between 7:30pm to 8pm on each Tuesday and Thursdays. 

3. The mother and the Independent Children’s Lawyer largely propose similar orders to each other, namely that the mother have sole parental responsibility for the children and that the children spend supervised time with the father at an agreed contact service or failing agreement by a professional organisation such as B Contact Centre.

4. At the interim hearing it was made apparent that the orders sought by the parties relating to the appointment of a single expert to prepare a family report was largely agreed. Except as to whether time ought to be supervised, the parties also agree as to the amount of time the children should spend time with the father.

5. Both parties each sought a number of injunctive restraints against one another, particularly in respect of physically disciplining the children. The Court has previously made orders restraining the parties from engaging in certain behaviours. Those injunctions will remain.

Relevant Evidence

1. There are a few agreed facts between the parties, as far as relevant they are as follows:

   a)The father was born in 1973. He is 47 years old.

   b)The mother was born in 1976. She is 44 years old.

   c)The parties married in 2005 and subsequently commenced cohabitation.

   d)There are two children of the relationship, X born in 2010 and Y born in 2012.

   e)The parties separated on 11 June 2019, when the mother left the matrimonial home with the children.

   f)After separation, for the period of at least July 2019 to January 2020, the children spent unsupervised time with the father every weekend from Saturday morning to Sunday evening (which later changed to every alternate weekend from October 2019).

   g)Between January 2020 to May 2020, and again from 14 August 2020 to date the children have not spent any time with the father.

2. The mother and father both make allegations of family violence against each other. This is the most significant area of dispute between the parties.

3. The mother submits that the father through his violent behaviour poses an unacceptable risk to the children if they were to spend interim time with him other than on a supervised basis.

4. The mother, inter alia, says to the Court that:

   a)The father was verbally abusive towards the mother and children, although the mother says that she did not fully appreciate the effect this would have on her or the children.

   b)In September 2017, the mother alleges that the father followed her into the bathroom and dragged her into the bedroom. He then pushed her onto the bed and sat on top of her whilst pinning her arms down. The father then proceeded to hit the mother, using his knees and head, head-butting her head and kneeing her body. It is alleged that this occurred in the presence of the children, despite the mother’s attempt to tell the children to go into another room during the alleged assault.

   c)In or about October 2017, a few weeks after the above incident, the mother alleges that the father pulled and twisted her arm behind her back. Y intervened in the altercation, inserting his body between his parents and tried to push the father away. This is indeed not the only incident the mother alleges that Y physically intervened in the alleged altercations.

   d)The father regularly checked the mother’s savings account and questioned her about any spending and/or any withdrawals that he could not reconcile. On one occasion, the mother alleges that the father became violent and verbally abusive towards her because he believed she was giving money to her family. It is alleged that the father commenced pushing the mother against the wall, and when the mother broke free, the father ran after her and tried to push her onto the bed until Y, again, physically intervened and said “don’t hit my mum”. The mother further says that the father then began yelling “this is your fault you are turning my son against me. This is your fault”.

   e)The father places no boundaries between himself and his daughter, X. In November 2018, the mother recalls an incident where she and X were standing in the hallway, and the father left the bathroom door open whilst standing there naked. The mother says the father made no attempt to cover himself and when questioned about it instead smiled with no response. This further speaks to other complaints made by the mother in this nature, namely, that the father often walked around the matrimonial home with his boxer shorts and front buttons undone in front of the children and that after separation X made the following complaint to the mother:

   “I don’t like it when dad sleeps in the same bed with me. When I brushed up against his legs I can feel that he had a lot of hair between his legs”

   f)On 7 January 2020, while the children were spending time with the father, the father slapped Y. The mother reported the matter to the police but no action was taken.

   g)She was the children’s primary caregiver. Apart from taking the children to school in the morning and assisting with the children when the mother went on work trips interstate (not more than one overnight stay at a time), the father refused to do any housework or take part in parenting the children.

   h)She lived in constant fear and felt that she was “walking on eggshells”, apologising to calm the father down if he became angry or violent – a routine that she feared was also been learnt by the children.

   i)The father’s alleged violent behaviours toward the mother and children remained much the same. On 14 September 2019, the mother alleges that the father attended the mother’s home to collect the children. He commenced yelling at her and as a result an argument followed “whereby he attacked me pushing me into the wall”. The mother says that X ran into her bedroom, which was her usual reaction, and Y intervened pushing the father and yelling “stop hitting mum”. The mother says she told the father he was no longer permitted to enter her home.

5. The mother further says that because the children were displaying unhealthy levels of anxiety, particularly the youngest child, who at the time was having trouble interacting with adults, in February 2020 she arranged counselling for the children with a counsellor from the Anchor Programme. The mother asserts that the father was advised of this and has been contacted by the organisation to discuss the children’s attendances. However, it is the mother’s view that a great deal more is required to be done to assist the children with their anxiety and to prepare them to spend time with father.

6. The father denies the mother’s allegations in their entirety. His accounts are, unsurprisingly, different as to what the mother alleges occurred on that day and throughout their relationship. For example, the father alleges that in relation to the 14 September 2019 incident, the mother was the aggressor of the situation. The father says that when he arrived 15 to 30 minutes late at 10:30am to pick up the children the mother was extremely angry and she started accusing him about spending money because he was wearing new shoes. According to the father the mother then proceeded to push the father against the main entrance and twist his arm. The father alleges that this had occurred in the children’s presence.

7. The father, inter alia, also says to the Court that:

   a)The mother was verbally and physically abusive towards him. In mid-2015, the father alleges that the mother became so upset with the father that she threw a glass frame at him. The father says that “he was lucky to come out of the situation without any cuts or serious injuries”.

   b)In November 2015, whilst the parties were at the maternal Aunt’s residence, the mother became extremely angry and physically abusive. It is alleged that the mother began hitting the father on the face, ripping his clothing and causing his ear to start bleeding. The father says he also had a bruise on his arm and fingernail scratches on his back. The mother’s sister called the police and the father was placed on a provisional Apprehended Domestic Violence Order (ADVO) which he asserts that he later consented to on a non-admission basis.

   c)The mother hits the children. The father alleges that on the 30 November 2019, X told him that “Dad, Y got smacked by Mum last week with a (shoe)”.

8. The father says that he and the mother were equally responsible for the care of the children during the parties’ relationship. The father asserts that he was “responsible for packing their lunches, and completing the pickups and drop offs” and that he encouraged and supported the children in their extra-curricular activities.

9. The father has complied with the orders made in May 2020 for CDT testing, and he has completed a post separation parenting course with G Counselling and a parenting course with Ms H. The father is attending an 18 Week Men’s Behaviour Change program through J Counselling and seeing a clinical psychologist to manage his anxiety.

10. The father’s case also included evidence from Dr K, who prepared a report, ultimately opining that:

    a)The father is a competent parent who is seeking restoration of contact with his children; and

    b)In her observations of the father, she did not note anything to indicate any areas of concern that would have a negative impact on the children’s safety and wellbeing.

11. Dr K did not have the benefit of speaking to the children or to the mother, she did not have the benefit of reading any of the material which had been filed in the proceedings, nor did she have the benefit of reading the Child Inclusive Conference Memorandum to the Court, all being limitations to her report[2].

    [2] which she herself recognised

12. Furthermore, Dr K relied entirely on the father’s hearsay and opinion as to many matters, including for example an erroneous assertion that the Family Consultant who prepared the memorandum to the Court did not speak to the father.

13. As such, Dr K’s opinions are of very limited weight.

14. In any event, the parties are due to see Dr E for the purposes of the preparation of an expert’s report on 7 and 8 December 2020. It is expected that Dr E’s report will be released in early 2021.

Child Inclusive Conference Memorandum

1. In evidence before the Court is a memorandum prepared by Ms L. Many of the matters which are referred to in the memorandum are concerning to say the least and as far as relevant they are as follows:

   a)The Family Consultant observed that X presented as an “articulate, polite and thoughtful girl”. She further reported X  to say the following:

   i)That Ms Dhawan did not use physical discipline and that she receives a “time-out” for misbehaving;

   ii)That during the time she spends with her father he does not interact much with her or her brother  and he is usually in another room;

   iii)That she “sometimes” is fearful of her father and recalls seeing her father hit her mother during their relationship. X concerning gives further details to an alleged assault of the mother by the father. She further says that she is scared because “there is no one to help her if she is spending time with Mr Bandi and he is angry”.

   iv)That X went further to ask the Family Consultant whether there was a number she could call for help if she felt worried;

   v)That she has not witnessed the mother be violent towards the father; and

   vi)That would like to spend more weekend time with her mother and that alternate weekends with her father was preferable;

   b)The Family Consultant observed him to be a “polite and friendly boy”. She reported Y to say the following:

   i)That he raised no concerns about the mother;

   ii)That when he is misbehaving he is sent to the “naughty corner”;

   iii)That when he is at his father’s home, he and X usually watch television or play video games and that he would like his father to interact with him more;

   iv)That he, similar to his sister, feels scared “sometimes” from his father and recalls when he was hit in the face by the father. Y explained that this was unlikely to occur again because he would not behave in a way that would cause the father to react in this manner;

   v)That he further recalls intervening in altercations between his parents, namely that “he use to stop Mr Bandi hitting Ms Dhawan” and “holding Mr Bandi’s hand”  and that “he used to climb onto the bed so he would be tall enough to intervene and hold Mr Bandi’s arm”;

   vi)That he did not want the current parenting arrangements to change as he would find it confusing.

1. The parties also make allegations of family violence against each other to the Family Consultant.

2. The children are both said to suffer from anxiety. Y’s anxiety is something which appears to have been addressed more recently through the Anchor Programme, while X’s was the subject of a referral going back to 2019, while the parties were still together. It is correct that Exhibit 3, being a psychologist’s report dated May 2019 for X, does not note any assertion or allegation that the child has been exposed to family violence. The mother is noted as reporting that X was always an anxious child but that the mother noticed an increase in the impact it was having on the child’s daily functioning.

Assessment of Risk and the Determination

1. The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed. Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact. Even in such constrained circumstances, the Court is still required to determine the applications before it. In the circumstances of this case due to the issues raised, the Court is to undertake a risk assessment. This is done by weighing the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected.

2. It was submitted by learned senior counsel for the father that the mother raises a series of broad allegations raising issues during the entirety of the parties’ relationship, and that her evidence is lacking in detail, and that it was difficult to discern what the mother’s case actually is. It was submitted on behalf of the father that the Child Inclusive Conference Memorandum to the Court should be treated with caution, that it is a very limited document, as there was no enquiry as to why the children may have said certain things, there were no observations of the children and the father and there was generally little to no analysis of the dynamics of the family.

3. The Court accepts that on a careful analysis of the evidence as a whole, there are concerns about the possible veracity of the allegations made in the mother’s case, particularly noting that she had agreed for the children to spend time with the father post separation which was not supervised and that there is no evidence that since separation the children have been hit by the father.

4. The Court accepts that there are limitations which may be placed on the weight afforded to the Memorandum, but the Court is at present undertaking only a limited risk assessment exercise as opposed to a fact finding and risk assessment exercise. As the authorities have pointed out numerous times, it is at times appropriate to take a conservative approach when weighing up the risks which have been identified in proceedings.

5. It has long been the experience of this Court that victims of violence often do not report incidents of violence, and that when such allegations are raised during proceedings (particularly as proceedings progress) criticisms are often levelled at the alleged victim for staying silent and/or submissions are made that the allegations of violence are simply fabrications.

6. The father submits that there is an internal disconnect in what the children say to the Family Consultant, that is, everything about the mother is positive and everything about the father is negative (the father allegedly yells and screams at the children but does not engage with them). The Court was taken to, what was said to be objective material, including that the children have said that they want to spend more time with the father in spite of the matters that they have otherwise reported to the Family Consultant.

7. It was submitted on behalf of the Independent Children’s Lawyer, that there was sufficient concern raised by the matters the children reported during the child inclusive conference such that supervised time was warranted. Namely, it was said that there was emotional punishment of the children for reaching out to their mother during periods of time they were spending with the father. 

8. The Court accepts the submissions made on behalf of the Independent Children’s Lawyer and the mother in respect of the risks which are posed and that in order for them to be ameliorated, time between the father and the children should be supervised.

9. The submissions made in the father’s case have weighed heavily in the Court’s determination, however, it is a conservative approach which is being adopted on the interim basis, particularly noting the engagement of the parties and the children in the Anchor Programme and previous orders for family therapy.

10. The father has gone to great lengths in his evidence to show that he is a capable parent and that he is not a risk to the children. The father denies all allegations of violence made by the mother, and indeed, he infers that the children have been influenced by the mother. While the father has enrolled in a men’s behaviour change programme, if the father did perpetrate family violence but he continues to deny it, such a programme is unlikely to be of benefit to him.[3]

    [3] See CIC Memorandum to Court at [38]

11. The Court is alive to the fact that ultimately and once the evidence is properly tested that the allegations of violence are not proven and/or that the risk to the children is not made out. It is also alive to the fact that supervision of time with a parent potentially inhibits relationships, however on balance, the protection of children presently outweighs the potential effect on the children’s relationship with the father.

12. The child inclusive conference memorandum described a variety of experience of family violence for the children, including the father hitting the mother, swearing at the mother and being angry at the mother and the children. Neither of the children said they wanted to spend time with the father, but rather that it would be “ok” for them to do so. There was some suggestion, presumably in answer to queries about spending equal time with both their parents, that the children expressed a view that they would want to spend alternate weekends with the father. 

13. It has never been her case that the children dislike the father, but rather that they have expressed fear of him. The mother has tried to engage with the father, and she says that what occurred during the child inclusive conference was a shock to her. It appears that the release of the child inclusive conference memorandum caused the mother to have insight into the effects of family violence on the children.

14. On balance, the Court finds that in the interim period, the children would be placed at a significant and unacceptable risk of harm if they were to spend time with the father other than on a supervised basis. The children will still have the benefit of spending time with the father, but their safety will be ensured. It is not appropriate that the time be supervised by the paternal grandmother in circumstances where the evidence suggests that she has previously not acted protectively towards them. 

15. Given that there is no evidence of any immediate long-term issues which might require a parental decision, or that the parties have been unable to jointly make any such long-term decisions, the Court declines to make any order for parental responsibility.  This leaves the situation in accordance with the relevant legislative provisions.

16. For all of those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 2 October 2020