Batala & Jenner

Case [2021] FCCA 1675

FEDERAL CIRCUIT COURT OF AUSTRALIA

Batala & Jenner [2021] FCCA 1675

File number(s): NCC 1512 of 2019
Judgment of: JUDGE TERRY
Date of judgment: 20 July 2021
Catchwords: FAMILY LAW – parenting – where the father is seeking an order which would enable him to spend time with his daughter aged 6 – where the child has not spent time with the father since she was 2 – where the mother alleges that the father perpetrated family violence including sexual violence and poses a risk of sexual harm to the child – where the mother’s allegations about risk of harm to the child were independently investigated on two occasions and not substantiated – where the court cannot find that the father poses a risk of sexual harm to the child – where the court cannot be satisfied on the balance of probabilities that the mother was a victim of family violence including sexual violence and cyber stalking – where the mother is strongly opposed to the child spending time with the father and the child is currently unwilling to do so – where the parties live in different states – where given the time that has passed, the distance the parties live apart and the mother’s entrenched views the situation may be difficult to turn around – where the Independent Children’s Lawyer proposed an order that the parties attend family therapy - family therapy ordered but with a sunset clause – application for change of name – mother’s surname to be added as the child’s last name
Legislation: Family Law Act 1975 (Cth), s 60CC
Cases cited:

Reynolds & Sherman [2015] FamCAFC 128

Ryan & Burnett [2008] FamCAFC 72

Flanagan & Handcock [2000] FLC 93-074

Number of paragraphs: 223
Date of last submission/s: 14 May 2021
Date of hearing: 2 & 3 March and 13 & 14 May 2021
Place: Newcastle
Counsel for the Applicant: Mr Williams
Solicitor for the Applicant: ALJ Legal
Counsel for the Respondent: Ms Kaiti
Solicitor for the Respondent: Tee Legal
Counsel for the Independent Children's Lawyer: Mr Guyder
Independent Children's Lawyer: Krstina Wooi Lawyer

ORDERS

NCC 1512 of 2019
BETWEEN:

MR BATALA

Applicant
AND:

MS JENNER

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

20 JULY 2021

THE COURT ORDERS THAT:

1.For all purposes the child X born in 2015 shall be known henceforth as X BATALA (“the child”).

2.The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child X BATALA born in 2015 to X BATALA-JENNER.

3.The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order 2 above is to do all acts and things to register the change of name of X BATALA born in 2015 to X BATALA-JENNER pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the…

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Batala & Jenner [2021] FCCA 1675
Case
[2021] FCCA 1675
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CaseChat Overview and Summary

In the matter of *Batala & Jenner*, heard by Terry J, the dispute concerned the future arrangements for a child, X, born in 2015. The applicant, Mr Batala, and the respondent, Ms Jenner, were the child's parents. The court was required to make orders regarding the child's surname, parental responsibility, and the nature and extent of the child's time with each parent.

The court was tasked with determining several key legal issues. These included whether the child's surname should be changed to include the father's name, the allocation of sole parental responsibility, and the arrangements for the child to spend time with the father. Crucially, the court had to consider the paramount consideration of the child's best interests, specifically the benefit of a meaningful relationship with both parents and the need to protect the child from harm. The court also had to assess the impact of the parents' past relationship difficulties and the child's expressed views and behaviours towards the father.

In reaching its decision, the court applied the principles of the *Family Law Act 1975* (Cth), particularly focusing on the child's right to a meaningful relationship with both parents and the need for protection from harm. Terry J found that while the parents' relationship was short and unhappy, and there were allegations of violence and control, there was no evidence that the child would be at risk of harm in the father's care. The court emphasised the significant benefit to the child of maintaining a connection with both parents, especially given their different cultural backgrounds. The court acknowledged the child's expressed distress and resistance towards spending time with the father, as noted in the family report, and therefore ordered a phased approach to reintroducing the father into the child's life, commencing with therapy and supervised contact.

The court made detailed orders, including that the child be known as X Batala, with the mother authorised to apply to change the surname to X Batala-Jenner. The mother was granted sole parental responsibility, with specific provisions for the father to be informed of major long-term decisions and to liaise with the child's school and health professionals. The orders also mandated therapy to facilitate a relationship between the child and father, with the father to bear the costs. Supervised time with the father was to commence after three months of therapy, with provisions for telephone and video communication thereafter, subject to the successful progression of supervised visits. The court also included an injunction restraining both parents from denigrating the other parent in the child's presence.

Orders

Orders of the court

NCC 1512 of 2019

BETWEEN:

MR BATALA

Applicant

AND:

MS JENNER

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

20 JULY 2021

THE COURT ORDERS THAT:

1. For all purposes the child X born in 2015 shall be known henceforth as X BATALA (“the child”).

2. The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child X BATALA born in 2015 to X BATALA-JENNER.

3. The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order 2 above is to do all acts and things to register the change of name of X BATALA born in 2015 to X BATALA-JENNER pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.

4. Subject to orders 5, 6 and 7 the mother shall have sole parental responsibility for the child.

5. The mother must notify the father in writing of any major long term decision she makes for the child promptly upon the decision being made.

6. The father is at liberty to liaise with the child’s school or preschool as to the child’s progress and to receive copies of all reports, newsletters and photographs at their own expense.

7. The father is at liberty to liaise with any medical or allied health professionals involved with the child and obtain information about the child’s health and medical treatment and the mother shall notify the father of the contact details for each medical or allied health professional.

8. Each parent shall promptly inform the other parent in the event of the child while in their care is involved in an accident or medical emergency requiring attendance at hospital or is diagnosed with a serious illness.

9. Each parent is restrained and an injunction is granted restraining them from denigrating the other parent or any member of that parents’ family to or in the presence or hearing of the child or from permitting the child to remain in the presence or hearing of any other person doing so.

10. Each parent shall keep the other advised of their mobile telephone number and email address and shall notify the other party of any change to those details within seven (7) days of the change occurring.

11. Within 7 days of the making of these orders the parents shall do all such things and sign all necessary consent, intake forms and authorities to engage the child in therapy with Mr B of C Counselling at D Street, Suburb E or other such child psychologist as may be agreed between the parties, for the purpose of restoring a relationship between the child and the father and implementing the ‘spends time with’ periods referred to in order 16 below.

12. The father shall pay the costs of the provision of the therapy.

13. Each of the parents shall ensure that the child remains engaged with the therapy for a period of no less than three (3) months, or such further period as recommended by the therapist appointed in order 10 above, with appointments to be scheduled at the discretion of the therapist.

14. The father is permitted to provide to the therapist copies of these orders, the judgment and the Family Report prepared by Mr F.

15. If the therapist, in their discretion, requests the attendance of the father upon the therapy by way of interview, or by way of electronic communication with the child, then the father is permitted to attend upon such therapy.

16. At the expiry of three months from the commencement of the therapy referred to in order 11 above, and for a period of 12 months thereafter the child shall spend time with the father every third Saturday from 11.00am until 2.00pm with such time to be supervised by G Children’s Contact Service or such other service as is available.

17. The time the father spends with the child pursuant to order 16 shall occur in the City H area.

18. Thereafter the child shall spend time with the father as agreed between the parties.

19. Following three visits pursuant to order 16 which are successful in that they occur and take place for the full duration of the time provided by the supervision service the father shall have telephone and video communication with the child on one occasion each week at times to be agreed between the parties and failing agreement each Tuesday between 5.30pm and 6.00pm NSW time and for that purpose the father shall place a call to a number provided by the mother to the father and the mother shall make the child available to receive the call.

20. If at the end of 9 months no supervised visits have taken place between the child and the father or some supervised visits have occurred but the time has broken down or the service has declined to further provide a service then the orders about the father spending time with the child are discharged.

Background

Background to the litigation

Against that difficult background in relation to the evidence I am going to have to make some findings about allegations, but before I do that I just want to refer to the background to the matter.Background The mother and the father met on a dating website in 2014 when they were 25 and 26 respectively. The mother grew up in Town N in New South Wales but in 2014 she was living and working in Melbourne. The father is Indian. He had migrated to Australia in 2007 and in 2014 he was also living in Melbourne. The parties began a sexual relationship and began spending time at each other’s places and four or five months into the relationship the mother discovered she was pregnant. It was unplanned and the mother suggested the father was initially unhappy about it but that is not uncommon and the mother’s own evidence suggests that he rapidly warmed to the idea of having a child. In 2014, when the mother was five months pregnant, she returned to Town N. The father did not object to that. There was some dispute about whether it was intended that he join her but nothing now turns on whether that was intended, the fact is that in 2015 he relocated to Town N and he and mother commenced living together at the maternal grandmother’s home. In 2015 they obtained their own rental and X was born in 2015. At trial the mother alleged there was violence in the party’s relationship in Melbourne, mainly sexual violence but also some threats and abuse by the father. The extent to which that is true is something I will have to consider later. There were issues between the parties in Town N. The mother alleged that there was an incident where she was pushed and she alleged stalking and control. Another problem that arose was that the father and maternal grandmother did not get on and there was some issues between them. On 12 June 2015 there was an incident when the mother wanted to end the relationship and leave the home with X and the father said she could go but not take the child. The police were called but they did not take any action and the parties continued to live together. The unhappiness and the arguments continued however and in late 2015 the mother ended the relationship and moved in with the maternal grandmother. X was then seven months old. On any view the parties had a short, unhappy relationship. That is true regardless of what I find about allegations of violence, and that is never a good situation in terms of children having an ongoing relationship with both of their parents. After separation the father moved to Suburb O, a suburb of City H. There was another incident on 13 December 2015. The father came to the mother’s home to visit X. The maternal grandmother showed up. She was sitting on the lounge filming the father. The father tried to take the phone. There was push and shove and the father and maternal grandmother both alleged the other was the aggressor. I will refer to that incident again later. The father reported it to the police but he told them he did not want to do anything about it. The maternal grandmother did not report it to the police.

Evidence

Evidence Before The Court

I will return to that issue at the end of the judgment because it is somewhat complex. The evidence The evidence the mother’s case was given by the mother, the maternal grandmother and the maternal Uncle Mr J. In the father’s case evidence was given by the father, his partner Ms K and by Ms L who was a housemate of the father’s on the Region M in 2016. A family report was prepared by Mr F, a Regulation 7 family consultant. Ms K was not required for cross-examination but the other witnesses were cross-examined. A tender bundle was provided to the court and at the end of the trial, each counsel identified the documents from the tender bundle they wanted the court to read. There were also some other tenders, including a USB. I have to make some difficult determinations in this matter about things that have occurred and the mother’s evidence presents a particular challenge to the court. The mother filed an extremely lengthy affidavit. It was 81 pages long and contained 392 paragraphs and there were a large number of annexures attached to it. In her affidavit the mother said that she had changed solicitors because her previous solicitor did not want to put all this information forward and she wanted to tell her whole story. Regrettably the affidavit contains lengthy paragraphs which are completely irrelevant. An example is paragraph 27, which is over 2 pages long. Filing such an affidavit does not help a party’s case, it actually hinders it. There is a risk that important points are going to be missed by the court when it is swamped with unnecessary and irrelevant detail. Another difficulty for the mother is that even after filing an affidavit which she said contained, at her insistence, every skerrick of the information she wanted to put before the court, she was still successfully challenged in cross-examination on a few occasions about the fact that some of the information in the answers she gave was not in her affidavit. If there had been some culling of irrelevant material the mother might not have forgotten those more important matters. Another concern about the mother’s affidavit was that she annexed text messages and WhatsApp exchanges in support of statements she made in her affidavit but when I read some of them, and I couldn’t read them all given the massive amount of material, it often turned out that the material in the annexures did not support her case. On other occasions the text messages and the WhatsApp exchanges were just the mother saying the same thing that she reiterated in her affidavit and the father saying nothing which was an admission or responding mildly. One of the interesting comments the mother made in cross-examination was that the father was someone who tended to avoid arguments rather than go looking for them. An example of the mother saying something in her affidavit which was not supported by information in the annexures was that she made a the broad statement that the father became upset if he found out she had spoken to or spent time with her friends and had told them about his isolating or controlling behaviours. In support of this she relied on a text message exchange which is exhibit M to her affidavit. In that exchange the father asked the mother not to tell her friends everything about their life. That is not an unreasonable thing for someone to be saying and it does not support the veracity of what is in paragraph 97 of her affidavit.

Decision

Reasons for decision

I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child, communicate with the child and make decisions about the child. The father did nothing about spending time with the child between June 2017 and May 2019 when he filed his application. He gave a reason for that, not being able to get legal aid, but the fact is he did not do anything. During those two years the child was exclusively in the care of the maternal family. She only heard from them about what had happened in the past and about what Daddy was like, and that has implications for the matter. The father needs to reflect, indeed all the parties do, on what might have happened if he had acted more promptly. In June 2017 the mother had still not formed the view that she was a victim of sexual violence in Melbourne. She did not begin raising those complaints until later in 2017 when she went to see a domestic violence service. Up to June 2017 the father had been spending some time with the child. If a child inclusive conference with an observation between him and the child had taken place soon after June 2017 it might have revealed that there was a bond there and the matter might have taken a very different trajectory to what it may now take. I cannot change the past but the fact that that gap of time has occurred is relevant to what I am going to be able to do with the matter. I must consider the likely effect of any change in the child’s circumstances. The father’s proposal was that the child should be reintroduced to him, starting with some therapy and then some supervised time. It was his case that this would be beneficial for the child because she would then be able to have a relationship with both her parents. The mother’s case was that such a change would not be beneficial for the child because the child would be at risk of harm. I cannot make a finding about the likely effect of a change in the child’s circumstances until I make some further findings about the s. 60CC (3) matters and findings about the s. 60 CC (2) matters and I will weave consideration about the likely effect of change into a conclusion to the judgment. I must consider 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. There is a considerable practical difficulty and expense with that in this case. The father lives in Melbourne. The time would need to start slowly and be supervised and the father conceded that it would initially need to occur in City H. The father said that on his current income it would be hard for him to get to City H frequently but he would make the effort. He proposed coming every three weeks. I am concerned about whether the father will be able to sustain paying for repeated airfares, especially if he also has to pay for the supervised time at G Contact Centre and for the therapy but I will discuss that later in the judgment.

Ratio Decidendi

Legal Principle Established

I then have to return to the primary considerations and they are the benefit to the child of having a meaningful relationship with both of her 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. I cannot find, based on my discussion about the allegations, that X would be at risk of harm in the father’s care, and the relevant primary consideration is the benefit to the child of having a meaningful relationship with both of her parents. It goes without saying that as long as they are not at risk of harm or at risk of substandard parenting, children benefit from having a relationship with the two different parents who are part of their genetic makeup. In this particular case the parents each have a different cultural background to offer to X and she would benefit from having a connection with both of them and not just with one of them. I mentioned during submissions that it is a long-term loss to a child to be cut off from a parent who comes from a different culture to their primary carer. They lose an opportunity connect with that parent’s language, culture, religion, and family, and the risk for X, if we cannot put something into place for her to spend time with her father, is that she will suffer all of those losses. The father is not perfect. His actions in threatening to record the mother surreptitiously, although he did not make much of a job of it because he admitted his intention, was confronting for the mother. His behaviour to the maternal grandmother was family violence. It is regrettable that he is not paying a proper level of child support for his child. It is regrettable that he relocated interstate. There is no evidence that he had to do that for financial or relationship reasons. He just wanted to, because he preferred to live in Melbourne. However no parent is perfect. It does not mean they should not have a relationship with their child and it will be a considerable loss for X is she is not able to have that relationship.Conclusion The family report writer carefully and accurately explained the difficulties in the matter, as follows:The primary observation and evaluation within this dispute, even regardless of the outcomes of further scrutiny and clarification by the Court, is that of the very obvious and clear presentation (distress and anxiety) of the child in terms of having a potential relationship with the father. If the Court is to order that the child should spend time with the father, the report writer would highlight that the child has currently, and would likely remain to have, significant resistance and distress about the notion of spending time with the father. Regardless of the truth behind each parties’ allegations of risks and concerns, it is simply true that the child would not want to spend time with the father. A significant amount of counselling and family therapy, such as that offered by a family therapist or Unifam services (for example), would be required in an attempt to ‘undo’ any of these beliefs and feelings of the child. Beginning contact with brief, supervised time, after some degree of therapy and advice offered by the relevant therapist, would be the best starting point for the child if time was ordered to occur between the father and the child. The child’s expressed views and behaviours were noted to be that the child did not want to have any contact with the father, and nor did the child show any natural curiosity about her father. The child had very fixed views on the nature of the father and the nastiness and meanness of the father, despite the fact that the child could not articulate why, or remember why. This is either because of the child’s limited memory, or because of the influence of the mother and maternal grandmother upon her. The child’s young age is also noted in this regard, and it is unlikely that the child has the cognitive capacity at this age to question or individually assess those concerns as attributed to the father, by the mother and maternal grandmother, directly to the child.