Bijou and Alabo

FAMILY COURT OF AUSTRALIA

BIJOU & ALABO

[2012] FamCA 919

FAMILY LAW – CHILDREN – Parental Responsibility – With whom a child shall live and spend time – Where parents cannot agree on which secondary school the child should attend – Where father’s proposal unworkable – Where mother’s proposal well thought out and takes into consideration the child’s wishes – Mother to have sole parental responsibility for decisions with respect to the child’s schooling – Where father has had difficulties setting age appropriate emotional and physical boundaries between himself and the child – Where child at risk of emotional harm – Where father has repeatedly put pressure on the child to live with him – Where father had repeatedly discussed details of the proceedings in the Family Court with the child – Ordered that the child spend four hours with the father on the weekend increasing to six hours after six months and then to ten hours after 12 months – Whether orders should be made on an interim or a final basis – Where evidence suggests that the father will continue to pressure the child to live with him – Orders to be made on a final basis.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Bijou

RESPONDENT:

Ms Alabo

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

SYC

5864

2010

DATE DELIVERED:

2 November 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

25, 26 and 29 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Christoff

SOLICITOR FOR THE APPLICANT:

Otto Stichter & Associates

COUNSEL FOR THE RESPONDENT:

Ms Obradovic

SOLICITOR FOR THE RESPONDENT:

Anthony Ziade & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Nash

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Pearson Family Lawyers

Orders

IT IS ORDERED

That the child B born … March 2001 reside with the mother.
That the mother have sole parental responsibility for decisions in relation to the child’s schooling.
That the parents otherwise have equal shared parental responsibility.
That the child spend time with the father as follows:
(a)       For a period of six months commencing on the date of these Orders, for a period of four hours each week commencing on the first Saturday after the making of the orders at 9.30am until 1.30pm, then on the next Sunday from 10.00am until 2.00pm and thereafter alternating.
(b)       Commencing six months from the date of these Orders, the periods referred to in Order 4(a) shall be extended to six hours, concluding at 3.30pm on Saturday and at 4.00pm on Sunday.
(c)       Commencing twelve months from the date of these Orders, the period shall be extended to ten hours commencing at 10.00am and concluding at 8.00pm on each day.
That during the period referred to in Order (4) (a) and (b) the father shall cause the child to spend no more than one hour on each occasion at his home.
That the father is restrained from discussing with the child anything to do with these proceedings or the child’s future residence, and from showing or making available to the child any document produced for the purpose of the proceedings.
That the father is restrained from bathing or toileting the child and from being in any change room or bathroom with the child.
That the mother shall ensure that the child speaks on the telephone to her father on 2 evenings each week for not more than 15 minutes on each occasion and the father shall initiate the call to the child.
That prior to the commencement of any unsupervised time between the child and the father, the ICL is requested to meet with the child and explain to her the structure and intent of the arrangements which have been put in place by these Orders.
That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bijou & Alabo 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 SYDNEY

FILE NUMBER: SYC 5864 of 2010

Mr Bijou

Applicant

And

Ms Alabo

Respondent

REASONS FOR JUDGMENT

background

The proceedings before the Court concern parenting arrangements for the child B born in March 2001 who is the child of Mr Bijou (“the father”) and Ms Alabo (“the mother”).
The parents are both of Middle Eastern birth. The father came to Australia in 1991 and became an Australian citizen in 1996. They married in 1998 in the Middle East, having known one another for two weeks. After the marriage, the father returned to Australia and it was not until November 1999 that the mother was able to join him. They commenced cohabitation in the home of the father and the paternal grandmother at Suburb C.
The child was born in March 2001.
In August 2001 the mother left the home with the child and the parents lived separately for five months, at which time they reconciled and lived in a rented unit in Suburb D for a further five months.
In about July 2002, the parties and the child moved back to the Suburb C home and again lived with the paternal grandmother.
In 2005, the paternal grandmother moved to live on a farm owned by the family in Queensland where she remained until April 2010, returning at that time to the Suburb C property with the father’s brother Mr E who also lived there.
On 8 July 2010 the mother left the home, taking the child and moved in with her sister, Ms F and her three teenage children.
The mother, her sister and all four children have since moved to larger premises.
The father remains living with his mother in Suburb C.

the issues

There were three issues for determination:
Firstly, the parents cannot agree on the school which the child will attend when she commences secondary school in 2013. The mother seeks sole parental responsibility for decision making in relation to schooling.
Secondly, the parents cannot agree about what time the child should spend with her father and in what circumstances.
Thirdly, the father asks the Court to make interim orders and the conduct a review in 18 months. Although, in closing submissions, counsel for the father withdrew that application, I propose to deal with it on its merits.

schooling

The father’s application is that the child attend the P School for her secondary schooling. He put no evidence before the Court about the benefits which could be offered by that school to the child. The only evidence of the fee structure was the father’s evidence that the fees would be about $20,000 per annum. After payment of child support and income tax, it is difficult to see how the father could pay school fees in that amount and his own expenses on an ongoing basis. He said he had a letter from the school confirming the child’s enrolment but the letter was not produced. The mother had not consented to the child being enrolled at P School. There was no evidence that the child would have any friends attending that school. The child has been educated in the Catholic school system for the whole of her primary education.
The father had no proposal for the child’s travel to and from P School while she is living at her mother’s home in Suburb R.
In relation to the matter of school fees, the father gave evidence that he works as a dental technician and earns $54,000 per annum gross as a full time employee but that he was planning to reduce his hours to part time work. He then planned to supplement his income by doing work at home. He was adamant that he could afford to pay the costs for the child to attend P School. He proposed that the mother might make some contribution but, when it was suggested that was unlikely, maintained that he would pay the whole amount.
However, when questioned about his failure to pay a costs order made in June 2012, he said that he was in difficult financial circumstances and had been unable to pay more than $440 in total of the $4,400 he was ordered to pay. That was only the first occasion when the father, in his evidence, gave the answer that best suited the question he was just asked rather than making an attempt to be honest.
The mother proposes that the child should attend Q School A number of the child’s friends from her present school will go to Q School and that is where the child wants to go. A place for the child is not guaranteed as entry is competitive. The mother proposes alternate schools if the child does not secure a place at Q School.
The father has made no enquiries about Q School so as to satisfy himself about the merits or otherwise of the child’s attending there. P School is his only proposal.
In the Family Report dated 18 May 2012, the Family Consultant, Ms K, summarises the mother’s reasons for the child attending Q School. The mother says that Q School is affordable, easy to get to by public transport, single sex, Catholic and the child wants to go there.
Ms K says that the child expressed a definite wish to attend Q School. She has visited the school and “seemed well informed about its programs, who of her friends would be attending and how she would get there”. Ms K says that the child’s choice seems to have been long and seriously considered.
Notwithstanding the clear statement of the child’s wishes and Ms K’s evidence, the father remains determined that she should attend P School. Ms K, in her oral evidence, expressed concern that the father seems unable to “take on” the child’s needs and her wishes. She described the father as “a person who is on a particular track and might have difficulty seeing beyond the path he sees for himself and the child”.
The father appeared to have no understanding of the effect on the child of forcing her to go to a school which is not her choice. The mother gave evidence that in a telephone conversation the father said to the child: “You have to go to [P School]…it’s a very good school”. The child told her father “Dad I don’t want to go to a big fancy school. I like [Q School]. I want to go there. My friends will be there”. The father said “[P School] is better. It costs more for an education, You have to go to [P School]”.
Ms K, when asked about the effect on the child of ignoring her wishes, said:
It’s very invalidating for the child. I think it’s - would seriously compromise her sense of who she is, her development, her understanding that she’s an independent person and growing and having opinions and it’s very important for adolescents, particularly, to be able to express opinions, have them validated and understood whether or not the adults run with those opinions or not. It’s particular important in terms of mental health and finding adulthood, really.
There is no likelihood of any agreement between the parents about the school which the child is to attend. The father’s proposal is rigid and, on its face, unworkable.
The mother’s proposals are well thought out and take into account the child’s wishes in a way which Ms K sees as appropriate. If the child does not secure a place at Q School, the mother can be relied upon to arrange a suitable alternative but the Court could not assume, even in that event, that there would be any agreement between the parents. Since they are unable to agree, one of them must have the responsibility to make the decision and it is the mother who has demonstrated that she can make objective decisions about the child’s schooling. Therefore those decisions will be made by the mother.

time with father

At the commencement of the hearing, the mother sought that the father’s time with the child be limited to day time only and on one day each week for a period of six months, then on two days of each alternate weekend, but not overnight. She did not ask the Court to impose supervision and was severely criticised by counsel for the father who put to her that, if her allegations about the father’s behaviours (which will de discussed later in these reasons) were true, she would insist on supervision.
The mother gave evidence of the child’s increasing maturity over the period of supervised time. She said that the child sleeps on her own; she argues with me; she is more open to reasoning; she makes friends; she is doing better at school, her social skills are improving and she more confidently stands up for herself. The mother’s observations were corroborated by her sister Ms F who said that the child was more confident; was no longer a “follower”; can stop and think and express an opinion; no longer “says yes, yes to everything”; can say what she doesn’t like or doesn’t want and finishes her schoolwork on time. Ms K also commented that the child had matured significantly.
Additionally, the mother gave evidence that the child has had five sessions of protective behaviours counselling with a psychologist between 23 May and 5 September 2012 and can have further sessions although none is indicated at the present time. The mother also said that her relationship with the child was such that she was confident that the child would tell her if there was anything troubling in her visits with her father.
Balancing all of those matters against her anxieties, the mother had concluded that the child’s relationship with her father would best be promoted by limited but unsupervised time. She said that the orders which she sought were sufficient to protect the child “the best I can”.
The father sought similar orders for the first year then alternate weekends (including overnights) for a further period of six months and then a further review. In essence, the father asked that the Court make interim orders only. That issue will be dealt with later in these reasons.
At the commencement of his cross-examination the father said that he wanted the child to live with him. He said he had been “pushed” to say the child should live primarily with her mother. Ultimately, in re-examination, the father gave evidence that no pressure had been put on him by his current solicitor or his counsel and that the orders he sought were those set out above.
I have no doubt, however, that the father’s real wish is that the child should live with him.
The father’s time with the child has been supervised since 22 November 2010. She has been spending two hours with him each week under the supervision of Ms G who is an independent person agreed upon by the parents.
The supervision orders were put in place after the mother filed an affidavit setting out her assertions of the father’s inappropriate behaviour with the child. The mother’s evidence is helpfully summarised in the chronology provided by the Independent Children’s Lawyer (“ICL”).
In summary, the mother alleges that the father has bathed with the child most of the time, that he has allowed her to touch his penis and that he sleeps with her over the mother’s strong objections. She did not allege that the father had asked the child to touch him or encouraged her to do so, rather that he did not discourage her. She did not allege that the father has touched the child inappropriately.
The mother says that in March 2010, when the child was sitting on her father’s lap, the child said “Daddy, your rude part is hard”. The mother says that when she told the father this was inappropriate, he said to her “you are not satisfying me sexually. You don’t give me oral sex. It is a natural reaction because I am not ejaculating enough”.
When the child turned three years of age, the mother says she said to the father “I am not happy you are naked in the bath with the child”. She says that when the child turned nine years of age the father, at her insistence, wore underpants in the bath with the child, but not on every occasion. She says they continued to shower together.
The mother says that on occasions during the marriage she spoke to the father about his behaviour with the child and he said to her on one occasion “It’s not wrong. You’re the one who has a sick mind about this. I am introducing the child to a man’s body. I don’t want her to be shocked when she sees a naked man. I don’t want her to be like you when you saw me naked for the first time. You have a dirty mind. It’s wrong for you to say these things. What I am doing is natural and alright”.
The father said to the mother “You are judging my behaviour because of the experience you had when you were young” (referring to her having been sexually abused by a neighbour between the ages of four and seven).
It was not the mother’s case that the father had sexually abused the child but rather that his behaviour lacked appropriate boundaries. She told Ms K in the interviews for the first report that she thought the father’s “behaviour has been inappropriate but that he has not sexually molested the child”.
The father denied every allegation and the mother was cross-examined to the effect that her evidence was a deliberate fabrication designed by her to destroy the child’s relationship with her father. I do not accept that the mother has set out on a course designed to destroy the child’s relationship with her father. In answer to that proposition, the mother in her oral evidence said that if she were trying to frustrate the father’s relationship with the child, she would be asking for more protection for the child. The mother has facilitated the child’s spending up to five hours on occasions with her father and the supervisor although the orders only specified two hours. On occasions when the supervisor was unavailable, the mother has arranged alternate supervision. The mother allowed the child to attend, without supervision, at the religious service of her cousins when the father was also present.
After the parents separated, the mother was told by the father’s sister Ms L, that the father had molested her when she was aged nine years to thirteen years. Ms L did not give evidence before me. However, I cannot dismiss out of hand the mother’s evidence of the conversation with Ms L. In the interviews for the first report, the father told Ms K that “his sister Ms L has also alleged that from the age of five to thirteen years of age that he (the father) touched her inappropriately”.
The paternal grandmother also gave evidence that Ms L had told her that the father had touched her inappropriately. The grandmother said “This is what she said but this is not true. I did not see anything”.
It is not possible to draw any conclusion about this evidence. However, the allegation made by Ms L is well known to the mother and to the paternal family and must have caused the mother to reflect on what she had observed of the father’s behaviour towards the child.
I do not find that the mother’s evidence is fabricated or prompted by a desire to damage the father’s relationship with the child.
In order to evaluate the father’s denials, it is necessary to consider some of the evidence unrelated to those issues as well as the evidence about his behaviour towards the child.
After the parties separated on 8 July 2010, there was a period of time when the child did not see her father. Arrangements were put in place in October 2010 by negotiation between their respective solicitors and the father spent time with the child on 23 October 2010. On 30 October 2010, when the child next saw her father, she was not returned to her mother. Police were involved. The father told police that the child was refusing to return to her mother. His version of the event is that the child steadfastly refused to return to her mother and that he was unable to convince her to leave.
On 1 November 2010, police officers attended at the father’s home. Present were the father, the paternal grandmother and the father’s brother. The father’s evidence is that the child was screaming hysterically and crying and that eventually a police officer said to him “We’re going to do something we’ve never done and never will again, we’re going to leave the child here”.

The version given in the records produced by the police is somewhat different. The notes record:
…when the young person was brought into the lounge room to explain to her the reasons that she had to be returned back into the care of her mother, (the father) continually interjected and repeatedly told her she did not have to go. She was constantly looking at her father and she appeared anxious. Police believed that she was unable to speak and give her reasons due to the influence of her father who would not allow her to talk in private. (The father) was constantly reminded not to interject so as to allow her the child to say freely how she felt about returning to her mother. (The father) took hold of his daughter and would not release his grip over the child. He was temporarily restrained so as to allow the child to communicate with police. The child was taken to another room however the child’s grandmother would not allow the child to go. As such the young person stated that she did not wish to return to her mother’s home as she was bullied by her older cousins where she lives with her mother.
The notes record that police determined that no immediate fears were held for the child’s safety and that she should remain with her father until the mother was able to obtain a recovery order.
I prefer the version of events given by the police officers who made contemporaneous notes, were objective and were under a duty to record the events, to those of the father and his brother. This is another occasion when the father’s evidence was unreliable.
The father’s brother was interviewed by officers of the Department of Community Services (“DOCS”) on 5 November 2010. In that interview, he said that the father had always bathed the child: “It’s true that (the father) has bath (sic) her all her life”. He also said “They all slept in the same room, but then (the mother) would get up and leave the room – and now she complains that they were sleeping in the same room together”.
On 7 December 2010, the father was interviewed by DOCS officers. When asked “Who baths the child?” he replied “Usually her mum, but she doesn’t like her mum she asks me to do everything I used to bath her”.
The issue of bathing was raised in Ms K’s first report. Asked by Ms K whether he got into the bath with the child routinely prior to separation he said he did not. He said that sometimes the child asked him to take a bubble bath with her and that only two or three times, since she was seven, had he agreed to do so. He said he had taught the child that they should always wear underwear whenever he washed the child’s back or they played together in the bath.
In his oral evidence, the father sought to draw a distinction between bathing the child and being in the bath with her. He said “I went to the bath to play with bubbles, not to have a bath”. Asked “During the whole time you lived with the child, you have never had a bath with her?” he replied “No, never”. This is another example of the father’s evidence being tailored to the outcome he seeks to achieve.
The father’s evidence was so woven with inconsistencies that it is difficult to ascribe any weight to it.
Ms K, in her oral evidence, said that her impression was that the father was rethinking how he needed to talk about his relationship with the child but that it was difficult to know whether his attitudes had changed.
The father described his relationship with the child as a “beautiful relationship, an intimate relationship” that is not sexual.
The child volunteered to Ms K that she and her father took baths together a few times after she was seven years of age. Ms K reports:
Without prompting, as if rehearsed, she told the Family Consultant that she and (the father) wore their underwear or swimming costume when taking a bath together. She said that ‘Mum knew we wore undies’. When asked whether she had been touched by others on her genitalia, the child said she had not ever been touched in her ‘rude parts’ by others. When asked if she had been touched by accident, she said that she did not think she had.
When talking about her parents, the child noted that her father is ‘cuddly’ and that at night she is his ‘hot water bottle’. She appeared uncomfortable when speaking about this and concluded ‘I don’t know how I became a hot water bottle.
In her Evaluation, Ms K said:
While the child appears under pressure and to feel some responsibility for her father’s feelings, she did not disclose sexual abuse. However, that she appeared to have been primed about what to say about their bathing together is of concern. It is possible that the child has been exposed to inappropriate behaviour or at least inappropriate conversations with [Mr Bijou] about their bathing together.
[Mr Bijou], [Ms Alabo] and the child give different accounts of the frequency of [Mr Bijou’s] and the child’s bathing together. Whether they bathed together consistently or only occasionally (with or without wearing underwear), until the child was ten years old is unclear. It is inappropriate for the child to bath with her father at her age, whatever frequency, when her development task is to individuate and separate from her parents in preparation for adolescence. Some of [Mr Bijou’s] behaviour and conversations with the child risk blurring essential boundaries between them and have the potential to seriously thwart the child’s social and emotional development. The past allegations of “inappropriate touching” as [Mr Bijou] reported his sister as having made about him are of concern.
[Mr Bijou’s] propensity to have “secrets” and “private” conversations with the child is of concern. It potentially isolates her from [Ms Alabo]. His touching of her (for instance, washing her back sleeping with her and “cuddling”), while not necessarily sexual, is behaviour that pushes physical and emotional boundaries beyond what is emotionally healthy between a father and his prepubescent daughter. [Mr Bijou] would benefit from counselling directed at limiting this behaviour towards the child.
Perhaps because of trauma she experienced in her own childhood, [Ms Alabo] is likely to be especially sensitive to problems of sexual abuse. She seems to be confused and anxious as to how [Mr Bijou] actually behaved towards the child during the marriage (particularly in relation to their bathing together) and whether [Mr Bijou’s] behaviour constituted sexual abuse of the child. That she had not raised concerns about [Mr Bijou’s] behaviour previously suggests that she did not appreciate that [Mr Bijou’s] behaviour may have been harmful or that she may have been afraid to mention her concerns outside of the family context for fear of retaliation from [Mr Bijou] or others.

The child’s cousin Ms O, the daughter of the mother’s sister, supervised time with the father on a number of occasions. She gave unchallenged evidence of the father, at the swimming pool, taking the child into the family change room rather than asking Ms O or Ms F to help the child (if she needed help). The child was aged 9 and was presumably well capable of dressing herself. Ms F gave evidence that, at this time, the child dressed and undressed at home without assistance.
In the interviews for the second report, the father told Ms K“I must be a normal balanced father, not sexually. Anything related to female things, she can call her mother’. He also said that he recognises that the child is twelve years of age and she can bath and dress herself.
Ms K expressed the view that the father has pushed physical and emotional boundaries beyond what is emotionally healthy between a father and his prepubescent daughter and recommended that the child not spend overnight time with the father.
In her evidence at trial, it emerged that there were two other related and equally important considerations in Ms K’s opinion that the child’s time with her father should be contained. Firstly that the father discusses the issues in the parenting dispute with the child and secondly that he puts pressure on the child to say she wants to live with him
It is the mother’s case that the father constantly pressures the child to come and live with him.
In the interviews for the first report, the child told Ms K that she was aware that her father wanted her to live with him but she was uncomfortable speaking to Ms K about her conversations with her father as she believed that she and her father agreed that their conversations should remain private. The child told Ms K that she would like to spend more time with her father, possibly each alternate weekend and three days in the alternate week.
Despite there being an order that the father not discuss the proceedings with the child, the mother has on numerous occasions terminated his telephone calls when he has spoken to the child about coming to live with him, about her dog Alex missing her, and about her bedroom being ready for her at Suburb C. He has said to the child “Tell Mummy that you want to see me more often”.
The father gave evidence that he discussed the contents of the second Family Report with the child, particularly in relation to her stated wishes. As recently as a month ago, in the presence of Ms G, he asked the child to write down what time she wanted to spend with him. He justified his conduct by explaining that the child initiated the conversations.
In November 2010, during the period the child was in his care before the recovery order issued, the father took the child to see his friend Mr H who has care of his daughters aged 6 and 15. The child told her mother that Mr H said to her “You need to tell the judge what you want. You can choose where you want to live. The judge will listen to you and will do as you ask him. You have to be strong and say what you want.”
On 1 November 2010, the day the police attended at his home, the father took the child to see the family doctor, Dr J. There is no suggestion that the child was ill. Dr J wrote a letter setting out the child’s complaints to him which are similar to the father’s version of events on that day.
The child has told her mother that a good day with her father is a day he does not talk about “the case”.
In the interviews for the first report, the child told Ms K that she and her father have private conversations when the supervisor is making coffee or is not around. Ms K, in her oral evidence said:
The notion of the private conversations in themselves is concerning and it’s part of, I would think, the package around the blurring of the boundaries, the lack of clear markers as to what is appropriate and what’s not appropriate. So that says to me that if those conversations are continuing after the family reports have been written, in the context of there being a court case, the father does not have control to limit those conversations, those private conversations which aren't to be discussed with the mother. I mean, it is – it is a – I am finding it a very positive thing that the mother – if these are true that the mother is aware that there are these private conversations, that’s a good thing. But in the pattern and the context of this kind of behaviour happening now for some years, I would be very concerned that they will not, basically, go away and that they will continue.
In the interviews for the second report, Ms G told Ms K that the father talks to the child about the court case and that he appears to feel sad and tells the child that he misses her. The father denied saying such things.
In his oral evidence the father denied having conversations about the court case but said that he and the child had discussed ‘many times’ where she wanted to live. He agreed that he had said to the child that soon she would be coming to his house where she can see her dog and her grandmother. He said that if the child brings up a topic in conversation he tells the child whether what she says is true, or not true.
The child’s wishes had changed when she saw Ms K for the preparation of the second report. She told Ms K that she had not been confident to express her true feelings in the first report, independently of her father. She suggested that she should see her father “one overnight every five weeks and a week in the school holidays”. She said that, because she is older, she can think more clearly and tell him what she thinks about his behaviour.
I note that the mother in her oral evidence said that she had asked the child to think about how long a period five weeks away from her father would be and the mother said the child had no concept of the length of time. The mother did not suggest that five weeks was appropriate between visits and sought, initially, weekly visits. This is further confirmation that the mother is not seeking to place undue restrictions on the child’s relationship with her father.
The father simply does not accept that the child does not want to live with him and his only explanation of her expressed wishes is that she has been brainwashed. He believes that the child should live with him.
Ms K in her oral evidence said, of the child’s changing relationships:
[The child’s] changes could be as much as what (the father) is talking about, as much as her own development. I mean, she is at a phase where she’s needing to find herself and moving beyond her relationships with her parents. They aren’t going to be as child like and as close as they once were. So it’s really important for parents to be able to understand that pre-pubescent phase and the independence that’s required of adolescents. If that’s understood, then it makes it difficult for children to grow, move beyond their childhood.
Unfortunately, the father has not confined his conversation with the child to the court proceedings. He has found it necessary to explain to the child that her mother’s family in the Middle East engaged in criminal activities. He told her that accidents happen in her mother’s family and that the child’s uncle (who died 20 years ago) died in such an accident. He justified that conversation by saying that the child had asked him if her uncle committed suicide. Ms K expressed the view that the father’s comments were harmful for the child, came close to being psychologically abusive and were indicative of a poor capacity to parent in terms of understanding the child’s perspective. She said that such conversation would have the potential to undermine seriously the child’s relationship with her mother.
The father gave evidence both orally and in his affidavit that the mother’s sister Ms F, with whom the mother and the child live, is a sex worker. Ms F is employed as an assistant in the office of a solicitor. In his oral evidence, he said that Ms F had put illegal drugs in his suitcase when he and the mother travelled to the Middle East for a holiday. That is not an allegation that has been made in any of the numerous affidavits he has sworn.
The father gave evidence that living with her mother and aunt is very bad for the child and that the child does not like the many men who visit her aunt.
He was not able to say whether the child would miss her mother if she lived with him but said she did not have a good relationship with her mother.
The father will be relentless in his continuing campaign to persuade the child to come and live with him. He has no real concept of the value to the child of her relationship with her mother and could not be relied upon to support that relationship. Rather, the father is likely to undermine the child’s relationship with her mother if opportunity arises.
Ms K in her oral evidence said:
I think that (the father) would find it very difficult, from my knowing of him, to desist from discussing matters which are not child focused, which would - and the court case would - what’s happening in court and the child’s wishes would come into that category.
In cross-examination on behalf of the father, Ms K was not challenged on her recommendation that there should be no overnight time.
In answer to propositions put to her by counsel for the ICL, Ms K was clear that the purpose of limiting the time the child spends with her father is to limit her exposure to his incapacity to maintain proper parental boundaries. She agreed with counsel for the ICL that to go from two hours each week with a supervisor to a full day unsupervised was too great a leap and that it would be more appropriate to increase time gradually. This would allow the child to increase her resilience to her father’s behaviour and would allay the mother’s concerns about the effect on the child of unsupervised time.
Ms K’s ultimate recommendation was that the child spend time with her father, unsupervised, initially for a period of 4 hours each week for 6 months; then increasing to 6 hours per week for a further 6 months and then for a full day taking in the evening meal. She said that the days should initially be structured around activities so that the child does not have the responsibility to “keep things going and to take control” as she had observed during the interviews for the reports. She also said that activities would lessen the father’s ability to talk continually to the child.
She gave evidence that the child would find that arrangement manageable and acceptable and that she would feel that her wishes have been taken into account. It was important, she said, that the arrangement was carefully explained to the child so that she was aware of the time limits and the structure.
She remained of the view that overnight time was too stressful for the child. Ms K said that the proposed arrangement would be sufficient for the child’s relationship with her father to be maintained. She said:
I think working towards it and building up, gives the child a sense that her relationship with her father is strengthening, so it’s in the right direction and I think that’s probably where things need to be for the child. That her relationship with her father, in terms of time, and the range of activities that they are able to achieve, is developing and that she will therefore have confidence in her relationship broadening out and becoming more well-rounded with her father. So, I believe so, your Honour. I think even though that it has been this two hours for such a long time and is supervised, it has been consistent. She does know him, it can only get fuller and stronger from now and its just a balancing act between pacing that, which would the child, and allow her then to re-engage with him more fully. I think that’s the danger that – too greater unstructured time would – could make it difficult for the child to feel confident enough and comfortable enough to re-engage with him, so its – it really is a matter of trying to pitch it to give her the best opportunity to sort of find him again as a Dad, I guess. And I think once a week, I think once a week is going to work, because it’s building up and it gives her the sense of – I think it will really help her to know that there are orders that are giving her confidence that she can have a fuller relationship with her father too, actually, in the right direction.
The Minute of Orders tendered by the ICL restricted the time the child spends with her father to maximum of eight hours after the expiration of 12 months. Given that Ms K envisaged that this period would include an evening meal, I propose to extend the period to 10 hours to conclude at 8.00pm.

interim orders

Ms K gave evidence that for as long as there appeared to be the potential for further proceedings, there would be sustained pressure upon the child from her father to spend more time with him or come and live with him. She described the pressure from the father as unrelenting.
While I am not confident that the making of final orders will convince the father to stop pressuring the child to change her mind, I am confident that the making of interim orders, with the prospect of a review, would encourage him to continue his campaign and I propose to make final orders.

conclusion

On behalf of the father, it was submitted that the Court is required to give primary consideration to the benefit to the child of having a meaningful relationship with her father. I am satisfied, having regard to the evidence of Ms K, that the orders I propose will allow the child to continue to have a meaningful relationship with her father while protecting her from the harm he can cause her emotionally. Ms K reports that the child’s relationship with her father has improved over the period between the two reports, while supervised for only two hours each week, to be warmer and more comfortable that it appeared previously.
I will make orders for equal shared parental responsibility (except in matters of education) but for the reasons explained earlier, I do not accept that either equal shared time or substantial and significant time are in the child’s interests, for the reasons which have been explored.
The child’s wishes are to live with her mother and to have limited time with her father. Ms K says that her wishes are well considered and authentic. She says, and I accept, that the child’s wishes should be given considerable weight. In so doing, it is not necessary, as Ms K pointed out, to make orders which simply mirror the child’s stated wishes, but rather to make orders which give weight to her views.
There is no doubt that the child loves both of her parents and they love her. The child has lived in her mother’s primary care for the whole of her life and is thriving and maturing in her mother’s care. She has developed a sibling like relationship with her three cousins. Ms K comments that “Her cousins provide the child with pseudo-sibling relationships that, in the long term, are potential buffers to the child experiencing social and emotional difficulties”.
In her mother’s household, the child has a continuing relationship with members of her paternal family including the father’s sister Ms L and her husband and the father’s brother Mr M and his wife Ms N and their respective children, her paternal cousins.
To change the child’s current living arrangements in any substantial way would expose the child to the pervasive influence of the paternal family in a manner that is not consistent with her welfare. None of the father, the paternal grandmother or the father’s brother is likely to promote the child’s relationship with her mother and, as Ms K noted, in her father’s household the child would become isolated in an adult oriented environment.
Ms K said that it is likely that, if the child spends more time with her father than she can manage, she will eventually refuse to spend any time at all with him.
The father does not have sufficient insight or understanding of the child’s needs to parent her in a way which recognises her needs rather than his own. His short comings are not ameliorated by the other members of his family who gave evidence.
The child’s welfare and her ongoing relationship with her father will be served and preserved by her having limited but frequent time with him.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 November 2012.

Associate:

Date: 2 November 2012

[2012] FamCA 919

Key Legal Topics

Areas of Law

Family Law

Evidence