Chabon & Keefe (No 2)
[2023] FedCFamC2F 1382
•10 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chabon & Keefe (No 2) [2023] FedCFamC2F 1382
File number(s): PAC 56 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 10 November 2023 Catchwords: FAMILY LAW – PARENTING – Where the subject child is 10 years of age – Where the child has not seen the father for a period of three years – Where the father seeks orders to spend unsupervised day-time with the child – Where the mother seeks orders for the child to spend no time with the father – Where there are cross-allegations of family violence – Where the relief sought by the mother is supported by the Independent Children’s Lawyer – Where the child has expressed clear views as to his relationship with the father – Where the father lacks insight into the child’s views and his conduct – Findings made that the father perpetrated physical assaults upon the mother, one of which was witnessed by the subject child – Where the prospect of the child spending time with the father is likely to cause the child extreme anxiety – Orders made for the child to spend no time with the father. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB (1), 4AB (3), 4AB (4), 60CC(2), 60CC(2)(a), 60CC (3), 65Y, s 117(1), 117(5)
Cases cited: Amador & Amador [2009] FamCAFC 196
B & K [2001] FamCA 880
Blanch & Blanch & Crawford [1998] FamCA 1908
Blinko & Blinko [2015] FamCAFC 146
Britt & Britt [2017] FamCAFC 27
Carter & Wilson [2023] FedCFamC1A 9
De Roma & De Roma [2013] FamCA 566
Gahen & Gahen (No 2) [2013] FamCA 936
Gorman & Huffman & Anor [2016] FamCAFC 174
Hendy & Penningh [2018] FamCAFC 257
Illgen & Yike [2018] FamCA 17
In the Marriage of McDonald [1994] FamCA 110
Isles & Nelissen [2022] FedCFamC1A 97
Keating & Keating [2019] FamCAFC 46
M & M [1988] HCA 68
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Moose & Moose [2008] FamCAFC 108
Ramzi & Moussa [2022] FedCFamC2F 1473
Whisprun Pty Ltd v Dixon [2003] HCA 48
Zuen & Lhao [2020] FamCAFC 84
Division: Division 2 Family Law Number of paragraphs: 204 Date of hearing: 10 to 13 July 2023, 4 August 2023, 24 August 2023 Place: Parramatta Counsel for the Applicant: Mr Fantin Solicitor for the Applicant: Pannu Lawyers Counsel for the Respondent: Ms Dalrymple Solicitor for the Respondent: Mahony Family Lawyers Counsel for the Independent Childrens Lawyer: Ms Karagiannis Solicitor for the Independent Childrens lawyer: Legal Aid NSW ORDERS
PAC 56 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CHABON
Applicant
AND: MS KEEFE
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
10 NOVEMBER 2023
THE COURT ORDERS THAT:
1.All prior parenting orders with respect to the child X born 2013 are discharged.
2.The mother shall have sole parental responsibility for X.
3.X shall live with the mother.
4.X shall spend no time with the father.
5.The mother is restrained from subjecting X to any form of physical punishment and shall use her best endeavours to ensure that no other person does so.
6.That within 28 days, the father shall pay the sum of $5,760.80 to Legal Aid NSW on account of a half share of the costs of the Independent Children’s Lawyer, subject to any waiver of costs by Legal Aid NSW.
7.All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
This matter relates to the parenting arrangements for X currently 10 years of age.
The parties married in 2012 and separated on a final basis in mid-2020. X was six years old at the time of separation. He has lived with the mother and spent no time with the father subsequent to the parties’ separation; a period of over three years.
The mother is the uncontested resident parent. The parties agree that it is in X’s best interests that sole parental responsibility for making decisions concerning him shall be allocated to the mother. For determination is what time, if any, X shall spend with the father.
The mother alleges that the father occasioned serious family violence upon her including the perpetration of physical assaults. She asserts that X spending any time with the father presents an unacceptable risk of harm that cannot be satisfactorily mitigated. The father denies the perpetration of any form of family violence and alleges that the mother has engaged in a course of conduct designed to alienate X from the father.
For the reasons that follow it is found that it is in X’s best interests for there to be orders that he spend no time with the father.
BACKGROUND
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties.
The mother was born in 1989 and is currently aged 34 years. The father was born in 1990 and is currently aged 33 years of age. The parties married and commenced living together in 2012. In 2013 the father arrived in Australia and was listed as a dependant on the mother’s student visa.
X was born in 2013. At the time of X’s birth, the father was working full time. The mother was working part time and studying full time.
The parties have obtained significant assistance from both the paternal and maternal grandparents in caring for X subsequent to his birth. With the parties’ consent, the maternal grandmother took X to Country B in 2014 where he was subsequently cared for by the paternal grandparents for a period of approximately six months.
Upon the return of the paternal grandmother and X to Australia in 2014 the paternal grandmother stayed in the home of the parties and assisted in caring for X whilst the parties continued to work and study.
X and the paternal grandmother returned to Country B in 2015 and were joined by the parties the following month. The father returned to Australia the following month. He was later joined by X, the mother and the paternal grandfather. The paternal grandfather assisted in the care of X until he returned to Country B later in 2015.
In 2016 the whole family travelled to Country B. The father returned to Australia the following month and X and the mother returned a month later. The paternal grandmother stayed in Australia from 2016 until 2017 and assisted the parties in caring for X.
In late 2017, the mother alleges an incident of violence which resulted in a provisional Apprehended Domestic Violence Order being made protecting the mother from the father. The mother subsequently requested that this Apprehended Domestic Violence Order be withdrawn, and it was later dismissed in court.
In late 2018 the mother alleges that a second act of family violence was perpetrated upon her by the father.
Later in 2018 the mother alleges that the parties had a heated verbal argument that resulted in her calling the police over concerns for her safety. Upon their arrival the mother signed a police notebook stating that she was not scared of the father.
The maternal grandmother visited and stayed with the parties from late 2018 until early 2019. The family thereafter travelled to Country B and stayed in the home of the paternal grandparents with the father returning in early 2019 and X and the mother returning in mid‑2019. The father’s evidence that during this latter period X lived in the home of the paternal grandparents and the mother moved between the paternal grandparents and maternal grandparents’ home was not challenged.
The parties separated for a period of six months from mid-2019 to early 2020. During this time X and the mother lived with the maternal uncle, Mr C and his wife. X spent time with the father on only one occasion in late 2019 supervised by a neighbour. The mother alleges that on this occasion the paternal uncle, Mr D, was also present and made a threat to the mother and the maternal family.
In mid-2020 the parties separated on a final basis following an incident on this date. X has not seen the father since this time.
On the following day the mother made a report to the police and a further Apprehended Domestic Violence Order was applied for on the mother’s behalf restricting the behaviour of the father. The father was arrested and charged with multiple offences. The father pleaded not guilty to all charges.
In mid-2020 the mother attended a general medical practitioner and obtained a mental health plan.
The father commenced these proceedings on 8 January 2021. On the 16 June 2021 interim orders were made on defended basis that:
·X live with the mother and spend no time with the father;
·the mother be restrained from physically disciplining X or permitting any other person to do so;
·the father is to complete the Taking Responsibility Course for Men and thereafter engage on a continuing basis with either the E Organisation or F Organisation ongoing support groups; and
·the father is to attend for hair drug and alcohol testing within 14 days and provide a copy of the results to both the mother and Independent Children’s Lawyer.
The father’s criminal charges were heard in the Suburb G Local Court in late 2022 and dismissed. A final Apprehended Domestic Violence Order was made to protect the mother and restrict the behaviour of the father with both the standard conditions and a condition prohibiting the father from contacting or approaching within 200 metres of the mother or her place or residence and employment unless such contact is through a lawyer. This Apprehended Violence Order has now expired.
The matter proceeded to a final hearing on 10 July 2023. It could not be contained within the four days allocated by the Judicial Registrar in circumstances where both parties required the assistance of interpreters. At approximately 4:45pm on the fourth day allocated for hearing an oral application was made by the father seeking orders that: -
·the final hearing be adjourned to November 2023;
·the mother make arrangements for X to engage with an appropriate mental health service; and
·pending the further hearing of the matter X spend supervised time with the father.
Orders were made by consent that the mother make immediate arrangements for X to engage with an appropriate mental health service. The balance of the orders sought by the father were opposed by the mother and the Independent Children’s Lawyer. The father’s application was refused and short oral reasons delivered at that time. The final hearing was adjourned part heard for a further two days on the 4th and 24th of August 2023.
THE PARTIES’ PROPOSALS
The relief sought by the father has changed throughout the course of the proceedings. The father advised the court child expert that he was proposing that he be allocated sole parental responsibility, that X live with him and spend one or two days a week with the mother.
The father now seeks orders in accordance with the amended proposed Minute of Order (Exhibit F2) broadly that:
·The mother have sole parental responsibility and X live with her.
·X spend time with the father on a graduating three stage basis, being:
·for a period of six months from 12.00 pm to 3.00 pm each alternate Saturday supervised by H Contact Service or such other suitable supervisory service, at the expense of the father;
·thereafter for a period of three months unsupervised each alternate Saturday from 12.00 pm to 3.00 pm; and
·thereafter from 9.00 am to 5.00 pm each alternate Saturday.
·X spend periods of time with the father on significant days including Christmas Day, Father’s Day and the father’s birthday.
·When not occurring at school, changeover of X between the parties is to occur at the McDonald’s at Suburb J.
·The parties complete the “Triple P Parenting”, “Tuning Into Kids” and “Parenting After Separation” parenting programs.
·The father be at liberty to communicate with X by telephone or video call for ten minutes on a Tuesday or Thursday evening.
·All communication between the parties be via the “Family Wizard” or other parenting application.
·Each party advise the other of any change in telephone and/or email addresses and any proposed change of residence.
·There be various injunctive orders made including the use of physical punishment to discipline X and non-denigration orders.
·Both parties be permitted to attend at school functions and liaise directly with various organisations that X attends.
·X be placed on the airport watch list.
·If the father consents to X travelling overseas, the mother shall be permitted to take him outside of Australia provided that the destination is a signatory to the Hague Convention and notifications are provided to the father.
The mother seeks orders on a final basis in accordance with her Amended Response broadly that:
·The mother have sole parental responsibility and X live with her.
·X spend no time and have no communication with the father.
·Pursuant to section 65Y of the Family Law Act 1975 (Cth) (“the Act”), the mother shall be authorised and entitled to remove X from the Commonwealth of Australia for the purpose of travel at her discretion.
The Independent Children’s Lawyer seeks orders that:
·The mother have sole parental responsibility; however, prior to the mother making any major long-term decisions regarding the care, welfare and development of X she is to notify the father and provide 14 days to respond. If the father responds within 14 days the mother is to take the father’s response into consideration.
·X live with the mother and spend no time with the father.
·The mother be restrained from subjecting X to any form of physical punishment.
·The mother make arrangements to enrol X in a mental health service, or if not available, to ensure X sees a child and family psychologist.
·That the father pay one half share of the costs of the Independent Children’s Lawyer in the sum of $5,760.80, noting that the mother is legally aided in these proceedings.
THE EVIDENCE
The father relied on the:
·Amended Initiating Application filed 13 December 2022;
·Affidavit filed 13 December 2022;
·Notice of Child Abuse, Family Violence and Risk filed 8 January 2021;
·Affidavit of Mr D (“the paternal uncle”) filed 13 December 2022;
·Case Outline filed 6 July 2023; and
·Outline of Submissions filed 23 August 2023.
The mother relied on the:
·Amended Response filed 26 July 2021;
·Mother’s affidavit filed 22 August 2022;
·Affidavit of Mr C (“the maternal uncle”) filed 2 December 2021; and
·Case Outline filed 5 July 2023.
All parties including the Independent Children’s Lawyer relied upon the Family Report dated 29 September 2021 and the Child Inclusive Conference Memorandum dated 6 May 2021 prepared by the same Court Child Expert. I have also read the written submissions of the Independent Children’s Lawyer filed 21 August 2023.
Whilst I have read and considered all the material relied upon by the parties and the Independent Children’s Lawyer in these proceedings, I do not propose to traverse all of the evidence in these reasons but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon [2003] HCA 48.
THE CHILD
X has lived with the mother since mid-2020. He currently lives with the mother, the maternal uncle and aunt in a four-bedroom house in Suburb J. X sleeps in his own room. He and the mother have their own separate living room, bathroom and play area. X is currently in Year 4 at K School in Suburb G.
The mother deposes that X is progressing well at school and practices his reading each day. The mother told the court child expert that X finds it difficult to sit still and study even for twenty minutes as he is very active. She stated that she previously found it difficult to attend to X’s education because of the stress she was under during her relationship with the father, but she is now able to focus more on supporting X’s studies. The mother reported that X is now managing adequately at school; he occasionally has problems with his peers, but these are quickly resolved. X is described by the mother as sensitive, sometimes requiring the mother to explain things to him when she is joking as he worries and takes things too seriously. The mother teaches X meditation and takes him to prayers to reduce his worries.[1]
[1] Family Report dated 29 September 2021, paragraphs 36 and 38 (“Family Report”).
The court child expert recorded that at the Child Inclusive Conference X presented as anxious to separate from the mother. At the Family Report interview X presented as bright, talkative and engaged, with a presentation that was appropriate for his age and stage of development.
THE PARTIES
The father is employed as a transport worker. He deposes that his employment is flexible and his roster can be amended as needed to accommodate X’s routine. He lives locally to X. There is no evidence that he has re-partnered.
The mother resides in Suburb J with X and the maternal aunt and uncle as set out above. She has not re-partnered. The mother works casually as a transport worker during times that X is at school. She is in receipt of Centrelink benefits.
I had the opportunity to carefully observe both the parties during the six-day final hearing. Despite neither party having had their affidavits interpreted to them prior to being sworn, both parties required the assistance of an interpreter to give oral evidence and read documents. Whilst I appreciate the difficulty for the parties in giving evidence via an interpreter, both parties experienced significant difficulties in undertaking the task required of them in cross‑examination: to simply answer the question asked of them.
The applicant father was unable to comply with the direction provided to him on no less than five occasions to answer the question asked of him rather than provide a narrative he wished to place before the court. He had to be told to not ask questions in reply to questions asked of him. The mother also had to be constantly directed to answer the question asked of her, which time and time again she was unable to do. The mother was focused on telling the Court what she wanted to say, irrespective of the question. She also had to be told not to answer a question by asking a question in return.
Throughout the course of cross-examination it was put to the mother and the maternal uncle on more than one occasion that they were lying. The father submits that the mother has made false allegations to the Police and is therefore not a credible witness. The mother conceded that she has lied to the Police and to Dr L, her treating physician. The mother deposes that in late 2018, the parties had a heated verbal argument and she called the police because she was afraid the father would become physically violent. She deposed that at this time she signed a statement in the police officer’s notebook stating that she had never been assaulted by the father and that they had only had verbal arguments. This was untrue, but she was afraid of retribution from the father if he found out she had told the police about the assaults.
The mother was cross-examined extensively about the fact that she had lied to police. She stated that she knew that it was a mistake to lie but that she had been scared and wanted to keep her family together. It was put to her that this was not the first time she had lied to police, which she agreed.
The mother told the court child expert during the Child Inclusive Conference that on one occasion in approximately 2014 the father seriously assaulted her. This was not mentioned at all by the mother to the court child expert in the later interview for the Family Report, nor is it deposed to in the mother’s affidavit. It was however put to the father in cross‑examination that as a result of an incident occurring in 2014 the police were called and an Apprehended Domestic Violence Order was issued protecting the mother and the child. The father at first agreed that he recalled this incident and then stated that he did not remember having an argument with the mother in 2014. The mother conceded in cross-examination that when the Police attended the home on this occasion in 2014 she lied and told them that everything was okay.
The submissions made by the father as to findings I should make with respect to the mother’s credibility overall are rejected. The submissions made show little understanding of the many factors and dynamics that may interplay in a relationship marked by family violence. The mother not wanting to have the Police involved and denying incidents of family violence is not inconsistent with family violence having occurred. As stated by the Full Court in Hendy & Penningh (2018) FLC 93-879 at [13]:
This binary view of family violence is outmoded and has no place in modern family law. In our view her evidence that she sought to preserve the family unit and to protect Z without the involvement of these agencies was neither incredible nor inconsistent with her evidence of her history of family violence.
The father’s submission as to the mother lying to Dr L is grounded upon Dr L’s recording that the father does not hit the child as compared to her oral evidence that this is not true, the father has hit the child on one occasion. I do not accept this submission. Dr L was not required for the purposes of cross-examination. These are not the records of the mother. I cannot be satisfied that the mother told the doctor that the father has never hit X.
I will not make the credibility finding as sought by the father and will make findings of fact on the evidence as to each incident relied upon by the mother to ground the relief she seeks in circumstances where she is the uncontested resident parent and seeks that X spend no time with the father.
THE LAY WITNESSES
The paternal uncle was cross-examined very briefly. His oral evidence does not assist me in any meaningful manner in determining this matter, however I found him to be forthright in the few questions asked of him.
The maternal uncle was cross-examined in a forceful manner where it was put to him on numerous occasions that his evidence was a lie and made up. He was questioned as to criminal charges laid against him in Country B. I reject the father’s written submissions that the maternal uncle avoided questions about his criminal antecedents in Country B and that the court should be cautious when placing any weight on his evidence. The maternal uncle’s evidence was unequivocal that all criminal charges against him were dismissed.
He was firm and unequivocal in his evidence and, whilst I will make specific findings below, I found him to be an impressive witness.
THE FAMILY REPORT
A Family Report dated 29 September 2021 was prepared for the purposes of the final hearing by Ms M, a court child expert of some six years’ experience (“the court child expert”). The court child expert’s earlier Child Inclusive Conference Memorandum to Court dated 13 May 2021 is also in evidence (“the CIC”). There was no assertion made by the parties that the court child expert had recorded any conversations with X or the parties incorrectly in the reports and I am satisfied that the reports accurately reflect what she had been told at each of the interviews.
The court child expert has multiple tertiary qualifications. She has extensive experience in child and adolescent psychology and has undertaken training in domestic violence informed practice. I am satisfied she is suitably qualified to provide her opinion to the court.
The court child expert had access to and read a wide range of material including material produced under subpoena. Due to the COVID-19 pandemic the parties and X were all interviewed via video link. No observations of X with the parties took place in those circumstances. In addition to these interviews the same court child expert had also interviewed each of the parties and X for the purposes of the CIC in May 2021.
The court child expert broadly recommended in the Family Report that:
·The mother have sole responsibility for the child.
·X live with the mother.
·X spend no time with the father.
The court child expert noted allegations of serious family violence perpetrated by the father upon the mother and considered that any contact with the father would likely impact on the mother’s ability to parent in a child focused manner. In the event that the court finds that family violence has occurred according to the mother’s account, the court child expert opined that ongoing contact with the father would likely result in X being exposed to aggression and violence perpetrated by the father and: “ …of being subjected to harsh parenting practices, such as physical aggression and an intolerance of age appropriate behaviours.”[2] In these circumstances the court child expert recommended that X have no contact with the father in any form.
[2] Family Report, paragraph 90.
If the court was to find that the allegations of family violence were fabricated, the court child expert indicated that it may be in X’s best interests to spend time with the father to develop his identity and have the opportunity to develop his own views of the father without the mother’s influence. However, considering the father’s difficulties in understanding the child’s needs and the likelihood of such an arrangement causing the mother to experience increased anxiety it was recommended that such time only occur during the daytime.
The court child expert opined that an order for no time with the father could possibly lead to X experiencing grief and confusion at different times throughout his development regarding the loss of the relationship with the father. She opined however that protecting X from aggression and family violence is of greater priority to maintaining his wellbeing than his relationship with the father.
The court child expert attended court and was cross-examined. Prior to such cross-examination she had read the trial affidavit of each of the parties.
The court child expert’s oral evidence was that:
·If the court finds the mother’s allegations of family violence have been substantiated, reintroduction to the father may cause X anxiety by exposing him to someone who has been a source of trauma.
·Perpetrators of family violence can have problematic influences on children who spend time with them and there is a risk that X will be exposed to further violence. In addition, people who behave in a coercive and controlling manner to a partner will often perpetrate a similar dynamic with a child.
·Even if the allegations of family violence are not substantiated, reintroduction to the father after three years’ separation would, in any event, be anxiety-producing for X. A parent’s ability to repair and rebuild such relationship is important, and in this respect the court child expert was concerned that the father’s insight into X’s potential difficulties was poor.
·It is positive that the father now proposes supervised time initially but ultimately this does not change her recommendation that X spend no time with the father.
·It is highly likely that the mother’s anxiety would increase significantly if X were to spend time with the father and this would negatively impact on her parenting capacity.
·X’s refusal to discuss the father in his interview could be due to anxiety arising from previous trauma if the father was violent, or it could be from a reluctance to say things that might upset the mother.
·The court child expert’s recommendations were grounded on the mother’s allegations of serious family violence and coercive controlling behaviour together with the apparent significant anxiety for both X and the mother around X spending time with the father. These factors meant that the disadvantages of spending time with the father outweighed the advantages.
·If the court were to find that the evidence did not support the mother’s allegations, the court child expert would still not recommend even supervised time with the father. The lack of insight demonstrated by the father during the interviews as to the effect of such a long separation on his relationship with X suggests that it is unlikely that the relationship would be positive for X. Reintroduction to the father would cause anxiety to X even if undertaken in a professional setting. This would be the case irrespective of whether the cause of X’s anxiety was caused by family violence perpetrated by the father or the mother engaging in a course of conduct designed to alienate X from the father.
·The court child expert affirmed her opinion that the advantages of X spending time with the father were outweighed by the disadvantages arising from: -
·the serious allegations of family violence made by the mother;
·what appeared to her to be significant anxiety for X in having contact with his father; and
·the significant anxiety that would be caused to the mother if X was spending time with his father.
The Family Report is now almost two years old. The father raised a “concern” at the commencement of the final hearing as to the age of the report, but no application was made at that time for an updated or further report by any party. The father further asserts that the Family Report is not balanced as it “highly emotive” and clearly favours the mother. He submits the court child expert failed to consider the risk factors relating to the mother, including the risk of psychological harm to X in the context of the father’s assertion that the mother has engaged in parental alienation. The father submits that the court child expert took seriously the allegations by the mother but did not engage with those of the father and failed to comment upon “any contested proposition from the basis of a null hypothesis.”[3] Criticism is made of the court child expert for not recalling all of her report in detail; a report made some two years ago. The father submits that the court child expert’s evidence in cross-examination was unsatisfactory.
[3] Father’s written submissions filed 23 August 2023.
I do not accept the father’s submissions. No particulars were provided to ground a finding that the report was “highly emotive”. The court child expert clearly pivots her recommendations dependent upon the findings made by me as to the alleged perpetration of family violence by the father. If the court found the father perpetrated family violence, she opines that it would not be in X’s best interests to spend time with the father. If the court did not make findings as to family violence, she opines that spending time with the father would still not be in X’s best interests having regard to the long period of time since X has seen the father and the anxiety re-introduction would cause. If the court were to find that the mother had fabricated the allegations, spending daytime only with the father may be in X’s best interests, but the father’s lack of insight would suggest that this would still not be positive for X. It is understandable that the court child expert would not be able to recall every detail in a report prepared some two years ago. The evidence given by the court child expert is not intended to be a test of her memory. I found the court child expert’s evidence as a whole to be considered and give it significant weight.
THE LEGAL PRINCIPLES
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration. This is confirmed in s 65DAA. A child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act.
The primary considerations as set out in s 60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence.
I am conscious of the serious consequences of the orders sought by the mother and the Independent Children’s Lawyer that there be no time between X and the father. As stated by the Full Court in Blinko & Blinko [2015] FamCAFC 146:
[30]…Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of Considerations, and all the more so when what is at stake is the potential for a child to never know their parent.
In reaching my decision I have considered all of the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
THE PRIMARY CONSIDERATIONS
Meaningful relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them: Mazorski v Albright [2007] FamCA 520. This is an important consideration in this case given the length of time it has been since X spent time with the father.
The Full Court in McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119]; [2009] FamCAFC 92 adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the Court:
…should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
Thus, I am not to assume that there is a benefit to X in having a meaningful relationship with the father but rather am required to ascertain whether there is a positive benefit to him in the circumstances of such a relationship.
The Full Court continued in McCall & Clark (2009) FLC 93-405, 83,476 that:
[122]…No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The proposal of the father would mean that X would continue to share a meaningful relationship with the mother and spend limited supervised time with the father for a period of six months and thereafter day only unsupervised time.
The proposal of the mother and the Independent Children’s Lawyer would mean that X would have no relationship with the father. The court child expert opines that X will most likely experience grief and confusion in losing his relationship with the father were there to be orders made that X spend no time with him.
Family violence
Each of the parties make allegations that the other has perpetrated family violence.
The standard of proof with respect to such findings is the balance of probabilities: see s 140 of the Evidence Act 1995 (Cth). Findings should be made in relation to abuse or family violence if “they are available and necessary to determine what is in the best interests of the child”: Amador & Amador (2009) 43 Fam LR 268, 282 at [88]; [2009] FamCAFC 196. Proof to the reasonable satisfaction of the court “should not be produced by inexact truths, indefinite testimony, or indirect references”: M v M [1988] HCA 68.
Family violence is defined in s 4AB (1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.” Section 4AB (3) provides that a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence.” Section 4AB (4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes seeing or hearing an assault of a member of that child’s family.
In Hendy & Penningh (2018) FLC 93-879 the Full Court clearly acknowledged that inconsistent accounts of events do not mean that findings of family violence cannot be made. At [76] the Full Court observed:
Inconsistency having thus been established, the totality of the evidence as to family violence was then evaluated as unreliable. No attempt was made to identify a core consistency in what she said. Amongst other things, this approach fails to recognise how hard it is for victims of violence inflicted by a family member, who is often someone they love or on whom they rely for sustenance, to speak about what has happened. The subject matter is distressing and giving voice to what has occurred can be traumatic in itself. We cannot say strongly enough that those involved in cases such as this must bear in mind that in this setting, disclosure is a process that often requires time before a complete picture emerges.
In Britt & Britt (2017) FLC 93-764 (hereinafter “Britt (2017)”) the Full Court at [34] observed that:
[T]he probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence. This is particularly so where the court is asked to draw an inference from all of the evidence, that is to say, all of the circumstances of the matter. This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.
A party does not require their evidence as to family violence to be corroborated before it can be accepted by the court: Keating & Keating [2019] FamCAFC 46.
The Father’s Allegations
The father alleges that the mother was verbally abusive towards him during the course of the relationship and physically assaulted him at the time of the parties’ separation. He alleges that the mother has continued to harass and “blackmail” him since separation. The father makes various allegations as to the mother’s care of X, including that the mother would become physically aggressive with X; slapping him on the back. He expressed concern to the court child expert that the mother allows X to watch gangster movies and the maternal uncle will teach X bad words.
The mother is the uncontested resident parent. Both the father and the Independent Children’s Lawyer seek an order restraining the mother from subjecting X to any form of physical punishment. The father was briefly cross-examined as to his allegations of the mother physically disciplining X. His oral evidence in this regard was that the mother would “not many times, but occasionally” physically discipline X by slapping him. When the father was asked why he did not make reports of such behaviour to the police or a doctor the father stated: “It’s not a major problem that I needed to record.” I am not satisfied that the father has discharged his evidentiary burden to enable a finding to be made in this regard. However, the risk of physical chastisement by the mother upon X will be discussed again later in these reasons. Similarly, the father’s expressed concerns as to the mother allowing X to watch gangster movies was not the subject of evidence and I make no finding in this regard.
The father seeks no finding that X is at risk of harm from coming into contact with the maternal uncle, nor does he seek any injunctive orders restraining the mother from allowing X to come into contact with him. No submissions were made as to the father’s expressed concerns to the court child expert. In those circumstances I make no findings in this regard.
The father made allegations to the court child expert that the mother has continued to harass and blackmail him subsequent to the parties’ separation. The only evidence of the father in this respect are broad allegations in his written evidence that the mother has continued to harass him using the Country B Court and Police system. The father has not met his evidentiary burden for me to make a finding in this regard.
The incident that preceded the parties’ separation is discussed below.
The Mother’s Allegations
The mother seeks that the court make specific findings as to two incidents of physical violence allegedly perpetrated by the father upon her in 2017 and 2020 to ground the relief sought by her. The Independent Children’s Lawyer does not press for any findings to be made as to the perpetration of family violence. I will thus focus on these two alleged incidents.
The Incident of late 2017
The mother deposes that an incident occurred between the parties in late 2017, when X was nearly 4 years of age. The mother deposes that:
·The parties were at home in the lounge room at approximately 2:30pm when they began to have an argument over finances. The parties’ housemates were at home and in their bedroom at this time.
·The parties were standing face-to-face. The father became angry and pushed the mother’s chest with both of his hands.
·The mother became fearful and took X with her and began to run out of the front door of the home towards the home of their neighbour, Ms N.
·The father followed the mother out with a kitchen knife in his hand.
·As the father followed the mother and X he picked up an object and slapped the mother’s legs with the object, causing her to stumble forward and fall on to the concrete ground. The mother felt immediate pain.
·The mother got up and ran with X to the neighbour’s home and locked them both in the bedroom.
·The neighbour called the police and the father left the neighbour’s unit complex.
·At approximately 3:20pm that afternoon the father came back to the neighbour’s unit complex and the neighbour again contacted the police to advise them of this. A short time later the police attended at the neighbour’s home and the mother spoke to the police and disclosed to them the incident that had occurred:
I recall feeling very upset and frightened as I spoke to the police. I said to the police: ‘I don’t want you to take any action against [the father] I just want him to stop hitting me.’[4]
·The police spoke to the father and a provisional Apprehended Domestic Violence Order with the standard conditions was made for the mother’s protection and naming the father as the defendant.
[4] Mother’s affidavit filed 22 August 2022, paragraph 17 (“mother’s affidavit”).
The mother deposes that after this incident she received telephone calls from both the paternal grandfather and maternal grandfather who pressured her into attending court when the matter was listed and requesting that the Apprehended Domestic Violence Order be withdrawn. The paternal grandfather advised her that he would speak to the father and promised that the father would never hit her again. The mother then received a telephone call from the maternal grandfather who told her that the paternal grandfather had telephoned him and told him that the mother needed to withdraw the Apprehended Domestic Violence Order. The mother deposes that she felt pressured to withdraw the allegations she had made to the Police. She thereafter attended court and requested its withdrawal.
The mother is recorded as telling the court child expert at the Child Inclusive Conference in May 2021 that the father threatened to harm himself on the same evening. Whilst this is not in the mother’s affidavit, the father was asked in cross-examination whether he had called someone subsequent to the above incident threatening to take his own life. This was denied by the father. In evidence is a New South Wales Police COPS entry dated late 2017 recording that the caller’s husband’s friend (the father) is threatening to commit suicide. I was not asked to make any findings in this regard and no submissions were made that X is at risk in the father’s care as a result of this allegation.
The father in his affidavit denies that he physically assaulted the mother. He agrees that the parties had a discussion about money on this date, wherein the mother told him that she wanted to go to Country B and he responded by asking her how she would do that when they had no money. He deposes that he then left the house and the mother later called him and verbally abused him. She threatened to call the police and have him charged if he went home, which he subsequently did. When he returned home the mother was not there. The police arrived and he had a discussion with them about the allegations but the father did not understand what they were saying as his English was poor. The police then applied for an Apprehended Domestic Violence Order on the mother’s behalf.
Neither the housemates nor Ms N gave evidence on behalf of either party as to this alleged incident. The Police report dated late 2017 records that the parties’ housemates were spoken to by them but they did not see or hear anything. The Police entry records that the neighbour did not witness the incident, but relayed what the mother was telling her in person over the phone to the Police.
The mother was cross-examined about this incident in detail. It was put to her that various aspects of her account were inconsistent with police reports or could not have occurred as described. The mother conceded that she had not mentioned the father holding a knife to the police. It was put to her that the police had recorded that the father hit the mother with the object on the balcony, not out on the street. She said that it occurred on the “concreting place” where the balcony starts, and that he had then chased her out of the home with the knife. It was put to her that she had not sustained any visible injuries from falling down. The mother stated that her injuries were not visible as she had been wearing trousers at the time of the incident. She was unable to recall exactly what she said to police or whether she had told them that she was not scared of the father.
The father was also cross-examined about this incident. He agreed that there had been an argument about money and that he became upset, however this argument was over the telephone. He denied pushing the mother, following her out of the unit, or hitting her with an object. He denied attending upon the neighbour’s house at any time.
In evidence is a New South Wales Police COPS entry created by Officer P in late 2017. Whilst the mother was cross-examined in detail as to inconsistencies and the various versions of the event, the mother’s oral and written evidence and the police record of the mother’s statement on the date of the alleged incident has a core consistency which was not successfully challenged by the father. It is weighty that the Police were called by a neighbour after the mother had left the home with X. The Police record that the mother was visibly upset when speaking with them. I find it significant that the mother, who was still in a relationship with the father at this time, is recorded as not wanting to give the Police a statement; she was not scared of the father “she just does not want him to hit her again.” [5] I can find no reason as to why the mother would be untruthful to the Police at the time of the alleged incident in those circumstances.
[5] Exhibit M2, page 1.
I accept and find that the parties argued as alleged by the mother and the father pushed the mother in the chest. I accept that the mother left the home with X as she was fearful for her safety. Whilst the mother was leaving the home with X to seek refuge at her neighbour’s home the father slapped her on her legs with an object, causing her to stumble and fall. This caused pain to the mother but there were no visible injuries. The mother is recorded as telling the Police that there was no knife and I accept this. The mother was not cross-examined as to her assertion that she requested the withdrawal of the Apprehended Domestic Violence Order as she felt pressured to do so by the paternal family and I accept that this was so.
The Incident of mid-2020
There are cross-allegations of family violence occurring in mid-2020, at which time X was 6 years of age.
The mother deposes that the parties separated for a period of six months from mid-2019 to early 2020. Upon the parties’ reconciliation the father began to “pester” the mother about the details of a bank account held solely in her name. At approximately 10:00am in mid-2020 the parties were having a verbal argument about the father wanting to gain access to the mother’s bank account. The father began yelling and the mother then attempted to leave the home. The father threw her car keys across the floor and locked the doors to prevent her from leaving. The parties continued to argue. The mother attempted to leave the room to go into different parts of the home to create a distance between herself and the father but the father followed her through various rooms of the house and continued yelling at her. During the argument the father struck the mother, causing her pain. The mother took out her phone to call the police, the father attempted to snatch it away, and a struggle ensued. Whilst the parties were struggling the father twisted the mother’s arm, causing pain to her shoulder. The phone slipped from the mother’s hand and hit the father in the forehead. The father responded by placing his hands around the mother’s throat and gripping tightly, causing the mother to have difficulty breathing. As the mother attempted to push the father off she scratched him in the face and the father’s grip then loosened. The father then struck the mother across the face with an object several times. The mother deposes that X was in the home during this incident and she could hear him crying.
The mother deposes that during the afternoon she had a headache and pains where the father had struck her. She attempted to leave with X to attend upon a doctor, but the father grabbed her by the wrist and took her back inside. She allowed herself to be guided back inside the home as she was fearful that the father would again assault her. At approximately 1.00pm - 2.00pm that afternoon the mother was able to leave with X and attended upon her doctor, Dr L. She disclosed to the doctor what had occurred. She deposes that she was having such pain in her jaw that she struggled to speak. Dr L prescribed the mother pain medication and advised her to rest.
Dr L’s notes from this attendance include:
DOMESTIC VIOLENCE
[…] SWELLING AND TENDERNESS
Reason for contact:
Injury – Face
….
domestic violence
husband hit her a few hours ago
[swelling and tenderness]
bruise noted
pot is crying
…
advised to inform police
feeling hopeless [6]
[6] Exhibit F15.
The notes record that the mother was prescribed pain medication and she was provided lengthy counselling by the doctor.
At approximately 3.00pm the mother and X returned to the home to find that the father had left. The mother collected clothes and medicine for X and left the home and stayed overnight at the maternal uncle’s home, Mr C. Upon arriving at Mr C’s home X began to cry and said to the paternal uncle “Pappa hit Mumma.”[7] Upon asking the mother what had happened the mother advised Mr C as to the father’s perpetration of physical violence upon her and the paternal uncle encouraged the mother to report to police.
[7] Mother’s affidavit, paragraph 35.
The maternal uncle also deposes that upon attending upon his home on that date X told him that: “Papa hits mamma.” The mother told him that the father had been hitting her a lot. He observed bruising and swelling and the mother in pain; wincing her face. The mother told him that her jaw was painful. Mr C told the mother to go to the Police.
The maternal uncle further deposes that for approximately 7-10 days following this incident he observed that the mother was not able to eat solid food and complained of pain when she tried to eat. He observed the mother to have swelling on her arm and she wore dressings on it. Following the incident he observed X to ask the mother when her injury would heal and to cry when observing the mother. He observed that X became anxious, scared and quiet. He attempted to cheer X up by spending time with him, buying him a Playstation and suggesting that he go on an outing with his friends.
The mother made a report to the police the following day. In evidence is the Provisional Apprehended Domestic Violence Order made on this date for the protection of the mother and restricting the behaviour of the father. Attached are the Grounds/Reasons for the making of the Application. Such recorded version of events is congruent with the mother’s written evidence and records:
·the oral argument over the father wanting to access the mother’s bank account;
·the mother attempting to leave the premises and the father throwing her keys across the floor;
·the mother moving from room to room to evade the father and him following her;
·the father striking her causing her to feel immediate pain;
·the mother attempting to use her mobile phone to call the police and a physical struggle ensuing over the phone at which time it slipped from the mother’s hands and hit the father on the forehead;
·the father becoming increasingly aggressive and placing his hands around her throat. The mother used her nails to scratch the father’s face in order to make him lose his grip. The father then struck the mother multiple times with an object.
·X was present during the events and could be heard by the mother crying throughout.
The father’s version of the events on this day was markedly different to the mothers. He deposes that the mother became extremely angry and was yelling and swearing at him and calling him names including “idiot” and “loser”. The father does not provide any context as to the mother’s alleged anger. The father is at pains in his affidavit to point out that X was not present inside the home when this incident occurred and was outside at the time playing in the backyard: “To the best of my knowledge, [the child] did not see any of the argument because I did not see [the child] at any point.”[8] The father deposes that he asked the mother to calm down and speak softly as X “…is outside and can hear you.”[9] The father went into another room to try to de-escalate the mother’s anger and to move out of the child’s line of sight from where he was in the backyard. The father deposes that the mother became even angrier and threw her mobile phone at his head, causing it to bleed. He then says she rushed towards him and clawed him with her long nails. He annexes photographs showing the injuries he received.[10] Such photographs show scratches on the father.
[8] Father's affidavit filed 13 December 2022, paragraph 53.
[9] Ibid, paragraph 54.
[10] Exhibit F11.
The father was arrested and charged with multiple offences.
The father pleaded not guilty to all criminal charges. The charges were ultimately dismissed by the Local Court in late 2022, however a Domestic Violence Order was made on a defended basis for the protection of the mother prohibiting the father from:
·assaulting, threatening, stalking or intimidating the mother;
·intentionally or recklessly damaging any of the mother’s property;
·approaching or contacting the mother in any way unless such contact is through a lawyer; and
·going within 200 metres of where the mother lives or works.
In cross-examination, the mother further alleged that she had not only heard but also witnessed X standing at the bedroom door during this incident, and that he witnessed the father choking the mother. She was firm in her evidence that: -
·The argument started as the father kept asking her about her bank account. It was put to her that the father kept asking her about this as she was not answering. The mother denied this and asserted that the father would not believe what she was saying and wanted access to her bank account.
·The argument started in the bedroom and moved to the kitchen where the father grabbed the keys and threw them across the floor.
·The argument moved back to the bedroom and the mother was lying on the bed and the father was standing over her. The phone hit the father in the head as she was holding onto it and the father was trying to pull it from her hands. She denied throwing the phone at the father stating that: “I wanted to keep my phone.”
·When the father was choking her she tried her best to push him away. As this did not work, she scratched him. She denied having made up the choking allegation.
·X was at home during the incident and she could sense that he was there. She denied that X was outside when the incident occurred.
Again the mother was cross-examined as to differing versions of this incident recorded by third parties who did not give evidence. It was put to her that she had not told Dr Q that she had been choked. The mother’s firm evidence was that she could not recall what she had told the doctor as she was not feeling well. In evidence is a Helpline Assessment from the Department of Communities and Justice. [11] It records that the department screened this incident as “Risk of Significant Psychological Harm with the Parental Risk Factor of Domestic Violence for [X] (6).” The notes record that X experienced a domestic violence episode perpetrated by the father upon the mother. X was “crying in the corner of the room whilst he witnessed his mother be slapped and punched on multiple occasions and his father choke his mother during the episode.” The mother was cross-examined as to the reporting that X was crying in the corner of the room as compared to her previous evidence that X was standing in the doorway. The mother could not specifically recall speaking to anyone from the Department. It was put to the mother at one point that X was not at home on that date, despite the father’s own clear evidence that X was at home and in the backyard.
[11] Exhibit F16.
In cross-examination the maternal uncle was clear and firm in his evidence that X was crying when he and the mother attended his home on the afternoon of the incident and that X told him that the father had hit the mother. The maternal uncle was adamant that the mother was wearing a bandage on her arm and that he could say so with certainty as “I saw with my own eyes.” The maternal uncle was clear that the mother did not say very much to him on this day as to what had occurred as she was finding it difficult to talk.
In cross-examination, the father maintained his version of events. He denied having locked the mother in the house or thrown her keys. He denied hitting or choking the mother. The father maintained that X was outside during the incident.
The father’s focus on the inconsistent evidence as to this incident arises for the most part from third party records. These third parties were not called to give evidence or be cross-examined. The mother’s evidence as a whole has been consistent as to the physical assaults perpetrated by the father upon her. She attended upon a doctor the afternoon of the incident and presents with swelling and bruising. The doctor records that such injuries are as a result of a domestic violence incident with the father hitting her. Whilst it does not record the alleged choking, the mother could not recall what she told the doctor at this time as she was upset.
It was not put to the maternal uncle that X was not crying when they attended and told him the father had assaulted the mother and I accept the mother and maternal uncle’s evidence in this regard. There is an inconsistency as to whether the mother told her brother specifically that the father had choked her on this day. Given the maternal uncle’s unchallenged evidence that the mother did not tell him about her allegation that the father choked her, I accept on balance that it is more probable that the mother did not tell him as to the choking at this time. I accept the maternal uncle’s clear and unequivocal evidence which was not successfully challenged that he and the mother spoke very little on this day as the mother was finding it difficult to talk.
The police records detail the mother’s allegations as to the hitting, the choking, and the father hitting her with an object. There was no explanation proffered by the father as to why he did not make a complaint to the police as to his allegation that it was the mother that assaulted him. The mother’s evidence as to the perpetration by the father of these various assaults and the chronology of events was for the most part consistent. I am satisfied that the mother’s evidence as to how the father came to have a slight bruise on his forehead and scratches is consistent with her version of events. I find that the mother has established, to the requisite degree, that the father perpetrated physical assaults upon her as alleged in mid-2020. Such assaults included slapping the mother, non-lethal strangulation, and hitting her several times with an object. I am satisfied and find that these assaults caused the mother pain, bruising and swelling. I accept the unchallenged evidence of the court child expert that non-lethal strangulation is a form of coercive and controlling behaviour.
Much was made of the inconsistent evidence of the mother and in the recorded notes by third parties as to where X was during these assaults. Whilst there is some inconsistency as to whether X was in the corner of the bedroom or in the doorway of the bedroom, the mother’s evidence in cross-examination was that the father assaulted her on more than one occasion witnessed by X and the version of events in the Department’s notes related to a different occasion.
I do not accept the father’s evidence that X was outside and did not witness this incident. The maternal uncle was not successfully challenged as to his evidence that X was crying and reported to him that the father had assaulted the mother. Irrespective of where he was in the home, I accept the mother’s evidence which was not successfully challenged that X was inside the home, witnessed the incident and was crying.
RISK OF ABUSE AND/OR NEGLECT
The mother deposes that the father worked long hours during the week, leaving between 5.00am and 6.00am and not returning until midnight. On Friday and Saturday evenings, the father would leave at around 6.00pm or 7.00pm and return in the early morning heavily intoxicated. Before leaving, the father and four or five of his friends would drink three or four bottles of liquor. The father’s alcohol consumption was such that his friends would have to physically help him into the home when he returned. On occasions the father vomited or urinated on the floor.
The mother further deposes that during the relationship the father disclosed to her that he was taking drugs. He did not disclose to her what drugs, or how often. She alleges that the father on multiple occasions threatened to kill himself by overdosing on drugs. In 2018, the father made such a threat and a short time later told the mother “I took a lot of drugs. I am not feeling good. I am feeling restless and I am unable to breathe.”[12] The mother and the parties’ housemate took the father to the emergency department, where he was treated and then released later that day.
[12] Mother’s affidavit, paragraph 58.
In support of this latter allegation records were tendered from R Hospital.[13] These records indicate that the father was admitted in the early morning and discharged around one and a half hours later. On triage he was described as “alert” and “anxious.” The record states “pt admits to having *big smoke of drugs […]*”. On discharge it is recorded that he reported having drunk half a bottle of liquor the previous night and had been smoking cigarettes. He reported that he had been feeling “weird and ‘dark in the eye’ and is quoted as saying “I feel my blood pressure is high” but these symptoms had resolved by the time he was examined.
[13] Exhibit M6.
In cross-examination, the mother maintained these allegations. It was put to her, and she accepted, that she had been interpreting between the father and hospital staff as the father did not speak English. It was put to her that she had told hospital staff that the father had been drinking alcohol but not that he had taken drugs. This questioning was at odds with the father’s own evidence that it was the mother and not himself who had told the doctor that he had taken drugs. She stated that the father had told her not to tell the hospital staff about the drugs because they would call the police.
The father denies that he would go out each Friday and Saturday evening drinking. He denies that he would return home intoxicated and asserts that he could not have done this as he was driving five days a week and would need to maintain a legal blood alcohol limit. In oral evidence he contended that it had been the mother who had told the doctor at R Hospital that he had been drinking the night before. He denied having stated that he had been smoking, drinking, or using drugs. He denied having stated that he felt “weird and dark in the eye” or “dark with cold hands” and stated that he had said he felt his blood pressure was low, not high.
The mother made no submissions that X is at risk of harm arising from the father’s alleged consumption of illegal drugs or alcohol. I am unable to place any significant weight on the medical evidence. It is clear that both parties have difficulties making themselves understood in the English language. I cannot be satisfied that what was recorded as being said is in fact what was said, or indeed that the father understood what was being asked of him. I thus make no findings in this regard.
THE ADDITIONAL CONSIDERATIONS
I turn now to the additional considerations as set out in s 60CC (3) as are relevant in this matter to determine what is in X’s best interests.
Any views expressed by X
At the CIC X told the court child expert that he had not been told by the mother the purpose of his interview. When the reason for the interview was explained, X:
immediately said that he did not want to see his father. He agreed to talk about his school and his mother, but repeated several times that he did not wish to discuss [the father]. [14]
[14] Child Inclusive Conference Memorandum to Court dated 13 May 2021, page 5 (“CIC”).
X spoke freely and positively about his relationship with the mother; describing the mother as a nice mum. He likes playing video games with his maternal uncle and playing with his aunt’s dog. Whilst he denied ever feeling worried, he said that he does feel worried about leaving his mother sometimes. He declined to talk to the court child expert about this any further.
During his later interview for the purposes of the Family Report, it is recorded that:
As in the CIC, [the child] declined to talk about [the father], except to say that he did not want to see him. He declined to discuss his reasons for this when asked. When asked what [the mother] thought about him spending time with [the father], he said “Mum never said anything to me”.[15]
[15] Family Report, paragraph 82.
The father submits that the Independent Children’s Lawyer submission that X has expressed strong views against having any contact with the father is not supported by the evidence. The father’s submission that there “is no evidence of the child’s views” is patently incorrect. X has clearly and unequivocally stated to the court child expert on two separate occasions that he does not want to see the father – or indeed discuss him. What the court child expert then opines is that it is not possible to infer the basis of X’s views - whether they are based on his own experiences of the father or whether the mother has (intentionally or inadvertently) influenced them. It may be indicative of his anxiety regarding the relationship with his father but may also be indicative of his anxiety with respect to the mother’s reaction to any comments he may make about the father.
The mother told the court child expert that after the CIC interview she had asked X if he was okay. When X did not respond she asked him directly if he had spoken about the father to the court child expert. X told the mother that “it was a secret and he did not want to tell her.” The court child expert opines that this reluctance may arise from X’s concerns as to the mother’s reaction to him talking about the father.
Given X’s young age and the lack of clarity as to the foundation of his views, the court child expert recommended that little weight be given to them. Having said this however, the court child expert opined that if orders are made contrary to X’s wishes, this may cause him increased anxiety and he would need scaffolding support to manage the change in his parenting arrangements. [16] I accept the court child expert’s unchallenged opinion in this regard.
[16] Family Report, paragraph 84.
The nature of the child’s relationship with the parties and other significant persons
There is significant dispute as to the care arrangements for X during the relationship. The mother asserts that she was the child’s primary carer in circumstances where the father worked five days a week and would leave home early each morning and not return home until midnight most evenings. The mother deposes that the father would become angry and yell at her when she asked for his assistance in caring for X and told her that it was not his responsibility.
The father denies that he worked the hours asserted by the mother and asserts that, as between the parties, he and the mother shared parenting duties equally. He further denies ever yelling at the mother when she asked for his assistance in caring for the child. The father’s affidavit deposes in detail the differing care arrangements for X during the parties’ relationship dependant on their living, working and studying arrangements.
In circumstances where X has been solely cared for by the mother for the last three years, it is not necessary to determine in detail X’s past care arrangements save to find that I am satisfied that until mid-2020 X was cared for by both the parties and their extended families. Since mid‑2020 X has been cared for solely by the mother and the maternal family.
Each of the parties reported to the court child expert that X was exposed to the parties’ conflict during their relationship. The mother asserts that X was present during incidents of family violence and I have made findings in that regard as set out above. The mother reported to the court child expert that X later expressed fear that the father would hurt the mother. The mother asserted that she tried to protect X’s exposure to the father’s perpetration of family violence during the relationship by acting in a manner to deescalate conflicts between the parties. The mother told the court child expert that she is not unsupportive of X spending time with the father, but that X has expressed to her that he feels scared of the father and that he does not want to go to the father’s home. The mother stated that she originally believed that X would change his views about seeing the father after some time, but that X continues to feel unsafe. “She said that [X] commented on how happy they are now and has said that they are now able to do what they want, whereas before [Mr Chabon] would not allow certain things.”
The mother told the court child expert that X still spontaneously expresses fear in returning to live with the father. Further:
She said that he has expressed anxiety about leaving [Ms Keefe] alone in the house. She said that he becomes fearful if someone is shouting, or even if someone simply talks loudly, and she has to explain to him that sometimes people just raise their voices. She said that he gave away his [toy] when another child shouted at him, because he was afraid of consequences of this.
It is the mother’s evidence and reporting to the court child expert that X has expressed both fear of the father and his concerns as to leaving the mother alone in the house. The mother further deposes that subsequent to the parties’ separation X expresses fear if he sees a car that is similar to the car driven by the father. The mother was cross-examined as to this allegation. The mother was not challenged on her evidence that X has expressed fears of the father when seeing cars similar to that driven by him; only that this is so because the mother has put that into X’s mind, which was denied by the mother. I accept and find that X has expressed fears of the father as asserted by the mother. There is no evidence to ground a finding that these fears have arisen from conduct of the mother.
The father told the court child expert that it was the mother that involved X in arguments and would denigrate the father to X. He asserted however that this would not have impacted on X due to his own efforts to not involve him. I am unable to understand the reasoning behind this assertion.
The mother is recorded as telling the court child expert at the CIC interview that X has told her that it is safer for he and the mother where they are living now, and that if the mother were to return to living with the father he would prefer to remain living with the maternal aunt and uncle. Neither the mother nor the court child expert were challenged as to this reporting and I accept that X has said this to the mother.
The court child expert said in oral evidence that her “interactions with [X] were limited, particularly in regard to his father.” She said that she did not ask X “many questions about his father” because X “shut down the questions pretty quickly” and said, “I don’t want to talk about my father.” When questioned on this issue, the Court Child Expert said:
So, generally, our priority is the wellbeing of children. In that interview, if it’s – and it’s their choice if they speak to us or not, if they offer a view or not. So, whilst we will encourage children to speak about things that they might be reluctant to speak about and, obviously, we have ways of trying to make children comfortable, ultimately we don’t pressure them to speak about things that they wish not to speak about.
Despite not seeing the father for a period of three years, the father asserts that he and X have a very close relationship. I accept the father’s submission that X had a relationship with him prior to the parties’ separation. Whilst I accept the father’s submissions that the father has been prejudiced by the delay in the final hearing of this matter as he wanted the criminal proceedings to be heard first and they were delayed due to the COVID pandemic, I do not accept the apparent submission made by the father that I should look to the cause of the disruption of the relationship. The father submitted that to “simply say that the father does not have a relationship with the child is misstating the complexity of litigation and how delay is highly prejudicial to the child and the parents.” Whilst I have sympathy for the father’s position that there was a delay of some seven months whilst the criminal proceedings were heard, in determining what is in X’s best interests I must look at the reality of the current position, which is that any relationship X previously had with the father is now clearly fractured.
I am satisfied and find that X has a close and loving relationship with the mother, who is the uncontested resident parent.
X has not had any contact or communication with the paternal grandparents or extended paternal family subsequent to the parties’ separation. The father deposes and I accept that X had a close relationship with the paternal grandparents during the parties’ relationship. It is unchallenged that X has a close relationship with the maternal uncle. X waits for the maternal uncle to finish work so that they can wrestle and watch videos together. It is not contested that X has told the mother that he wishes to continue living with the maternal aunt and uncle, “even when he gets older.” [17]
The capacity of each parent to provide for X’s needs and their demonstrated attitude to X and the responsibilities of parenthood.
[17] Family Report, paragraph 42.
The court child expert raises serious concerns as to the father’s capacity to understand and provide for X’s emotional needs. A clear example of this is the father’s views as expressed to the court child expert during the family report interviews that, despite X not having seen him for over a year at the time of the report interviews and his expressed views to the court child expert that he did not wish to see the father, the father did not anticipate any problems and appeared to underestimate the likely impact of change in care arrangements for X, particularly a change in residence as was originally sought. The father suggested that it might be difficult for “one or two days” after X came into his primary care, but that after that there will be no problems, because X is attached to him and the paternal family.”[18]
[18] Ibid, paragraph 35.
The court child expert commented that the father’s proposals and suggestions appeared inconsistent, both stating that X should live with him and that his time with X should commence with very brief intervals, supervised if necessary. The court child expert suggested that the father may be focused primarily on the parental conflict and notions of fairness rather than X’s needs, as his reasons for his proposals included not only his prior relationship with X but also his financial contributions to X’s care and his desire to counteract the mother’s influence over him.
I asked the father questions relating to how he would deal with a situation in which X continued to become upset and refused to spend time with him. The father stated that he would remove the source of anxiety for X, play with him and use polite behaviour. I asked the father what he would do on a practical level if these measures did not work and X continued to refuse time with the father. The father stated:
FATHER: I know [X]. He doesn’t hate me that much that he will have this bad behaviour, but I will try my best to resolve that and build that sort of relationship.
HER HONOUR: How are you going to do that on a practical basis?
FATHER: I will initially try myself to improve that relationship because I know those things which makes him happy but if there are issues, he is really very fond of his grandfather and grandmother and if needed I will try to get them here so he can spend time as well.
HER HONOUR: Your parents are in [Country B]?
FATHER: Yes, but they have a valid visa until 2025.
The court child expert opined that the mother appeared focused on X’s needs and experiences. “She cited [X’s] responses as the reason for her proposals and gave clear examples of her worries for him.” [19] The court child expert recommended in the report dated 29 September 2021 that X be provided with counselling and support with referral to a child psychologist from X’s treating general practitioner. Despite this having been recommended almost two years ago, the mother had not adopted this recommendation by the time of the final hearing. The mother was unable to provide any cogent reason in cross-examination as to why she has not arranged this assistance for X. The mother’s oral evidence was that she took X to her doctor and was told by her doctor to give X some time so that he would perhaps “forget.” The mother stated that she was still prepared to take X to see a psychologist notwithstanding that such recommendation was made in September 2021 and she has not done so since. When it was put to her that this recommendation was made over two years ago, the mother’s response was simply that she would again speak to her doctor. It is regrettable that the mother did not engage in appropriate support for X and submissions were made on the mother’s behalf that she has herself been suffering as a victim of family violence.
[19] Family Report, paragraph 84.
Material produced under subpoena from the X’s school records two parent interviews with X’s teacher and the mother in July and September 2020. The reasons recorded for the meetings was that X will push to the front of the line at the front of the class and talk during class. X’s teacher is recorded as speaking to the mother about X overreacting to being disciplined by crying and saying he does not want to come to school. The mother advised the teacher that X is very sensitive and gets emotional over little incidents. At the second meeting the mother advised that if X cannot settle into his class she may speak to the principal about the possibility of him changing classes.[20]
[20] Exhibit F8.
Excerpts from the Student Chronicle produced by X’s school records that: -
·In early 2023 X was spoken to after upsetting a fellow student by saying unkind things to her as she had been “annoying” him. X was spoken to about positive strategies to employ when these situations arise.
·In early 2023 X and a fellow student received lunch time detention as a result of getting into a physical altercation in the playground.
·In early 2023 X was the victim of a physical assault by another student arising from X calling him a cheater.
·In early 2023 X was spoken to about his behaviour with “multiple hands-on” incidents within a week at breaktime which always involved sports.
·In mid-2023 X was suspended for the afternoon as a result of aggressive behaviours and swearing on a number of occasions.
·It is recorded that in mid-2023 four students were involved in misbehaviour involving members of the general public. When spoken to, all four students denied the allegation however X later admitted his actions to a teacher. X and the mother were to spoken to about the incident. [21]
[21] Exhibit F9.
The mother’s response to the above has been to wait for the school to arrange group counselling.
Both parents have demonstrated limitations in their capacity to provide for X’s needs. As stated above, it is unfortunate that the mother did not arrange mental health support and assistance of X subsequent to the release of the Family Report. Nor does it appear that the mother has been proactive in addressing X’s behavioural difficulties. Hopefully X will obtain a positive benefit from an appropriate health service pursuant to the orders made by the court on 13 July 2023.
Having heard the father’s oral evidence, I accept the serious concerns of the court child expert as to the father’s capacity to understand and provide for X’s needs. I accept that the father does not fully comprehend the difficulties he may face in attempting to spend time with X were that to be ordered. He does not appear to have thought of any practical measures to assist X to adjust to spending time with him when he has clearly expressed that he does not wish to do so, save for the possibility of his parents travelling from Country B to assist.
The extent to which the parents have taken the opportunity to participate in making decisions about major long-term issues or spend time or communicate with X
There is a factual dispute between the parties as to whether the father sought to visit X during the period of their six-month separation. I am unable to make a finding in this regard having regard to the contested evidence.
In any event, the father commenced proceedings six months after the separation of the parties’ seeking orders that X live with both parties on a weekly rotating cycle.
Financial support of X
The father’s evidence that he pays approximately $485 per month in child support in addition to X’s school fees was unchallenged and I accept this evidence. It is to the father’s credit that he has continued to financially support X despite not spending any time with him since the parties’ separation.
The likely effect of any changes in X’s circumstances
The court child expert’s evidence was that if the court made findings as to family violence she would have concerns as to X being reintroduced to the father. Such concerns revolve around X being exposed to a person who has been a source of trauma for him, and the future influences a perpetrator of family violence would have on X.
Irrespective of any findings made as to family violence, the court child expert opined that X being re-introduced to a parent he has spent no time with for three years – whatever the reason – would be “significantly anxiety producing for him”. The ability of the father to repair and re‑build this relationship will have a significant impact on the level of difficulty for X during this process. The court child expert opined as set out above that the father’s ability to reflect on the potential difficulties for X was:
quite low and that his expectation that they might resume a relationship were quite unrealistic and likely to cause distress to [X] if he was placed in that situation.
Further, whilst X’s views should not be given weight having regard to his age, if orders were to be made that were contrary to his views, he could either have an angry response or an anxious response. The court child expert opined that it was more likely that X’s response would be an anxious one. I accept this opinion which was not successfully challenged.
The practical difficulty and expense of a child spending time with a parent
It was clear from the father’s oral evidence that he had not given any consideration to the financial costs of the supervision of his time with X for a period of six months as sought by him. He had not made any enquiries as to the costs of same. When asked as to how he would pay the costs of supervision of approximately $5,473 for the six-month period the father’s evidence was that “I know it’s hard, but I don’t have any other option” and suggested that he would “work more” to obtain the money. He is unsure if he could obtain the assistance of family or friends.
Otherwise, there was no evidence as to any practical difficulty and expense associated with X spending unsupervised time with the father.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to X
This matter has now been on foot since January 2021. No submissions were made that further proceedings in the future with respect to X’s parenting arrangements would be in his best interests. I accept that it is preferable to make orders that would be least likely to lead to the institution of further proceedings.
DISCUSSION AND DISPOSITION
Parental Responsibility
As I have made findings that the father has perpetrated family violence upon the mother, the presumption that it is in the best interests of X that the parents have equal shared parental responsibility is rebutted.
An order for equal shared parental responsibility requires the parents to make joint decisions about major long-term issues affecting X. Having regard to the findings of family violence made, I am not satisfied that the parties would be able to communicate in a way so as to reach joint decisions as required concerning X’s care. The father himself by way of his Outline of Case submitted that the parties are not able to communicate effectively, nor are they able to co‑parent. Both the mother and father agree that it is in X’s best interests that the mother have sole parental responsibility for X as the uncontested resident parent. The Independent Children’s Lawyer seeks an order that the mother advise the father of any major long-term decision she proposes to make concerning X and consider the father’s position prior to a decision being made by her. Having regard to the determination below that there be no time between X and the father, I am not satisfied that it is in the best interests of X for the mother to communicate with the father in any way. Thus I will make an order for the mother to have sole parental responsibility for X as agreed between the parties.
Adjournment and Family Therapy
At the conclusion of the final hearing all parties were asked to make submissions as to the possibility of the matter being adjourned for a period of time to enable X and the father to engage in reportable family therapy and a report to be prepared thereafter as to the relationship between X and the father. The proposition appeared to be supported by the husband and opposed by both the mother and the Independent Children’s Lawyer.
The father’s position is that if the matter were to be adjourned then he would be agreeable to paying the costs associated with family therapy but seeks that such therapy take place concurrently with the father undertaking any Taking Responsibility course having regard to the wait times in being able to enrol in such a course. The mother and the Independent Children’s Lawyer both oppose any adjournment of the matter to enable family therapy to occur and submit that it is in the best interests of X that the proceedings be finalised.
The court child expert gave oral evidence that she was supportive of X attending “intervention”, on the basis that it does not occur with the father as X was very clear that he was not comfortable with the idea of spending time with the father. Irrespective of whether such a view has arisen from the mother’s efforts to alienate him, it “is still likely that reintroducing him to his father after a long period of separation is going to be difficult and anxiety provoking for him.” This evidence was not successfully challenged and I accept it. Balancing all of the considerations above, I find that adjourning the matter as suggested would not be in X’s best interests.
Time with Orders
I must now undertake an assessment of the potential risk of harm to X were he to spend time with the father. I have found two instances of serious family violence occasioned by the father upon the mother. The consideration and determination of whether there exists an unacceptable risk to X in spending time with the father will need to be evaluated in part by reference to these findings.
The assessment of risk requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M [1988] HCA 68. The assessment of unacceptable risk is a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities: Isles & Nelissen [2022] FedCFamC1A 97. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which are proved to that standard. The concept of “unacceptable risk” falls within the broader issue of determining what is in the child’s best interests and to which the resolution of the existence of an “unacceptable risk” is subservient: see M & M [1988] HCA 68 and B & B [1993] FamCA 143.
Noting the proposal of the mother as supported by the Independent Children’s Lawyer that there be no time between X and the father, I must carefully evaluate and balance the relevant considerations ensuring that I carefully analyse all options which may enable X to have the benefit of some kind of relationship with the father: Blinko & Blinko [2015] FamCAFC 146. I am conscious of the serious consequences that arise if I were to make no orders for time between X and the father.
The mother submits that X is at an unacceptable risk of harm in the father’s care that can not be ameliorated in any way such that there should be no orders made for time between X and the father. The mother submits that the father in his evidence and interview with the court child expert has not demonstrated that he has the appropriate level of insight to acknowledge and address the role that his perpetration of family violence has had in contributing to the breakdown of his relationship with X, nor has he taken the necessary steps to ensure that he does not reoffend. The mother submits that if orders were made for X to spend time with the father there is the risk that “the father may perpetrate family violence on [X] directly, and/or continue to perpetrate violence on the mother, which would have devastating effects on X’s psychological well-being.” [22]
[22] Case Outline of the Mother filed 5 July 2023, page 6.
Whilst the Independent Children’s Lawyer did not seek a finding that the father perpetrated family violence, it was submitted that the father’s proposal exposes X to an unacceptable risk of family violence. Whilst not seeking any findings as to family violence the Independent Children’s Lawyer submits that this unacceptable risk arises because: -
·The father has failed to take any responsibility for the events leading to the breakdown of the relationship with the mother;
·The father has perpetrated family violence against the mother;
·The father has failed to address any aspect of his behaviour and this suggests both that the father may expose the child to some form of family violence which has not been addressed by the father in any meaningful way. [23]
[23] Written submissions of the Independent Children’s Lawyer filed 21 August 2023, page 7.
The father submits that:-
·X is at greater risk of psychological and emotional harm should he remain in the mother’s sole care.
·The father’s proposal will allow X to have a meaningful relationship with both the father and the paternal family.
·The Independent Children’s Lawyer does not engage with the risks to X if he were to spend supervised and then unsupervised time with the father.
·The Independent Children’s Lawyer did not speak to X to inform the court of the child’s views.
·The views of the court child expert need to be tempered with caution as X was 7 years old at the time of the interviews.
·There is no evidence of risk of physical harm to X in the father’s care, noting that the father is not proposing overnight time.
·If the court makes no orders for time, then X is at serious risk of non-conformity to social norms.
The court child expert’s oral evidence was that her recommendation that there be no time between X and the father were based essentially on: -
·The allegations of serious violence. The court child expert affirmed that non-lethal strangulation is at the higher end of risk concerns.
·The appearance of significant anxiety for X in having contact with the father.
·Significant anxiety that would be caused to the mother if X was spending time with the father.
The court child expert upon further questioning was clear that she was of the view that in the event the court made any findings as to family violence her recommendation would be that X spend no time with the father. This is because she has concerns as to the lack of acknowledgement from the father regarding this behaviour.
In matters concerning the welfare of a child, family violence and the effect of exposure to family violence must be considered and given weight: Zuen & Lhao [2020] FamCAFC 84 citing B & K [2001] FamCA 880. The court child expert clearly articulates the risks associated with a child spending time with a perpetrator of family violence. There is of course the risk that X will be exposed to further perpetration of violence, either towards the victim-parent or the perpetrator’s new partner. As clearly articulated by the Full Court in Blanch & Blanch & Crawford [1998] FamCA 1908, such exposure raises the serious dangers that children can:
…suffer insecurity, fear, unhappiness, anxiety and hypervigilance from witnessing abusive behaviour of a parent. Such effects present a threat to their emotional development.
Probably the worst danger to children is the role model that a violent parent provides which can lead to children themselves coming to suffer the serious social disability of using violence in their dealings with other people including those they love. Such a disability can destroy the most intimate relationships and bring the person into conflict with other people, the police and the law…
The court child expert opined in the CIC that being subjected to family violence would be considered “extremely detrimental” to X’s safety and wellbeing. She opines in the Family Report that:
If [Ms Keefe’s] account of family violence is found to have veracity, ongoing contact with [Mr Chabon] is likely to place [X] at risk of exposure to further aggression and violence perpetrated by [Mr Chabon] and of being subjected to harsh parenting practises, such as physical aggression and an intolerance of age appropriate behaviours. In this case it is recommended that [X] spend no time with [Mr Chabon].[24]
This evidence was confirmed by the court child expert during the course of her oral evidence. It was not successfully challenged and I accept it.
[24] Family Report, paragraph 90.
I reject the father’s submissions that there is no evidence as to the risk of physical harm noting that the father does not seek overnight time. There is no evidence to suggest that X is only at risk in the father’s care of a night time – indeed the father has been found to have perpetrated both acts of family violence upon the mother during the day. Further, there is no evidence to support the father’s submission that X is at serious risk of non-conformity to social norms if he does not spend time with the father.
I have found that X was present during both the instances of family violence perpetrated by the father, the court child expert opined that this would have had an adverse effect on X and would make him concerned for the mother’s safety, particularly if the father was present. It was concerning for her that X is afraid to leave the mother at home alone and she opined that X’s separation anxiety at his age is unusual and indicates a high level of anxiety. I accept this unchallenged opinion noting that one such physical assault involved the father choking the mother. X witnessed the physical injuries the mother sustained as a result of this serious assault.
The court child expert further opined that the father’s denial of his perpetration of family violence indicates an increased risk that he will perpetrate violence again. I accept this unchallenged evidence.
[Mr Chabon’s] suggestion that he was asked to do anger management and men’s behaviour change courses due to [X’s] views, rather than the allegations of family violence, may suggest an inability or unwillingness to reflect on his own behaviours and the impacts of such behaviours on [Ms Keefe] and [X].[25]
[25] Family Report, paragraph 89.
As detailed earlier in these reasons, the father was ordered on 16 June 2021 to complete the “Taking Responsibility” course for men and there after engage on a continuing basis with an ongoing support group. The father did not do so. The father’s written evidence is that he enrolled in the Taking Responsibility course and attended a first interview in late 2021. On this occasion a course worker by the name of “Mr S” told the father that he was not eligible for the course as he had not pleaded guilty to any domestic violence offences. The father deposes that he requested a letter from “Mr S” to confirm this, however he has not received such letter as yet. During cross-examination the father stated that he could not remember whether he received a letter and that they might have sent this letter to his lawyer, but he was not sure. Further, it was the father’s oral evidence that he did not attend to any other parenting courses as he “didn’t know of any others.”
The father in his submissions then appears to suggest that it was somehow the responsibility of the Independent Children’s Lawyer to assist the father to find similar courses to Taking Responsibility. I reject this inference. The father’s responsibilities pursuant to the interim orders of 16 June 2021 were very clear – he was to undertake within a reasonable time the “Taking Responsibility – A Course for Men” program and thereafter engage on a continuing basis with an ongoing support group. A later notation was made in the orders of 1 March 2022 that “The Independent Children’s Lawyer has kindly assisted the court to make enquiries in relation to a similar course that the father may enrol in prior to the adjourned date.”
On 22 November 2022 the Independent Children’s Lawyer wrote to the father’s legal representative and clearly advised then that a finding of “not guilty” in criminal proceedings makes a person ineligible for Men’s Behavioural change courses and suggested that they contract T Services to discuss the father’s ability to enrol in a course. It then stated:
Having said that, if your client does not intend to participate in the "Taking Responsibility" course in accordance with the orders, I do not say that any non-compliance should hold up the listing of this matter for final hearing. In my view, ultimately it will form part of the evidence before the court and the parties may make submissions to the court as to what (if any) inferences should be drawn from the father's participation or non-participation.
There is no evidence that the father undertook this suggested path. The father has not undertaken any behavioural change programs. I do not accept his evidence for not doing so. I accept the court child expert’s evidence that this indicates an inability or unwillingness of the father to reflect on his past perpetration of family violence and the impact this has had on both X and the mother.
The court child expert opined that in light of the mother’s account of the perpetration of family violence upon her by the father it is likely that any contact with the father will cause the mother significant anxiety and may be detrimental to her capacity to parent X in a parent focused manner. [26] The mother told the court child expert that living in a household marred by family violence negatively impacted her ability to parent X in a child focused manner.
[26] Family Report, paragraph 88.
The mother deposes that because of the family violence the father occasioned upon her during the relationship she would not feel for safe if she were to come into face-to-face contact with the father. “I feel very anxious and fearful at the thought of having to see [the father’s] face or his voice.”[27]
[27] Mother’s affidavit, paragraph 10.
The following exchange occurred during the mother’s oral evidence:
COUNSEL:You’re asking for there to be no contact at all between the father and [X], no face-to-face contact, no telephone contact, nothing?
MOTHER:Yes.
COUNSEL:How long do you say that should be the case for?
MOTHER:Like I can’t say anything now because he is growing and I don’t know for how long he will feel fear inside. Maybe he needs some time to – I can’t say anything now for how long.
COUNSEL: Okay, but you’re not asking for two or three years, you’re asking for an order until he’s 18, is that right?
MOTHER:Like, I think that’s the best time when he confident and he can do –
COUNSEL:Correct me if I’m wrong, but I got the impression from some of the answers you gave to Mr Fantin in his questions that if [X] was okay with seeing his father you’d be okay with it as well?
MOTHER:Yes if he feels okay then it’s okay for me unless he is have [inaudible] and no stress and tension.
…
COUNSELWhy are you asking the court to make orders for no contact? Tell us in your own words please?
MOTHER:It’s only because for [X’s] safety and for [X].
…
COUNSELHis safety from what?
MOTHER:Like, he feel safe and he feel confident, he don’t stress –
COUNSELNo, you said it’s for [X’s] safety, I want to ask you, his safety from what?
MOTHER:Like as he feels scared from his father… so like if he feel safe, then he can.
COUNSELAre you saying that the only reason you want no contact is because he’s saying he’s scared of his father?
MOTHER:Yeah he’s not feeling safe and he’s scared from him.
The mother told the court child expert that if the court made orders for X to spend time with the father, she would explain to him that this time would be supervised and that: “ …if [X] was happy to go and spend time with [Mr Chabon], she would be agreeable to this occurring.” [28] She stated that if X were to spend time with the father she would feel “very worried during the time that he was there, because [X] has expressed that he does not wish to go.” [29]
[28] Family Report, paragraph 43.
[29] Family Report, paragraph 74.
No submissions were made on the mother’s behalf that her parenting capacity would be discernibly impaired were X to spend time with the father.[30] Her oral evidence did not appear to be that this was the case. Whilst the language and cultural differences of the parties may be a factor in this, no evidence nor submissions were made on the mother’s behalf to that effect and I thus make no finding in this regard. I am however satisfied on the unchallenged evidence of the mother that she has a genuine belief about the welfare of X in the care of the father in circumstances where she believes X fears the father.
[30] See Blinko & Blinko [2015] FamCAFC 146.
Whilst the mother’s evidence at first glance appears to be that she would be comfortable with X spending time with the father if X was comfortable and felt safe doing so appears to negate any finding being able to be made that her parenting capacity would be negatively affected if such time were ordered, her evidence was clearly that she would be comfortable if X was.
The court child expert opined that whilst supervision might provide the mother with some reassurance, in the event that the court finds that the mother has experienced serious trauma at the hands of the father, she was of the view that simply having supervision is not going to be sufficient to reduce this anxiety as “ the mere fact of the father’s presence will be triggering to her anxiety.” I have found that X would not be comfortable in spending time with the father. In those circumstances I accept the court child expert’s evidence which was not successfully challenged that this may affect the mother’s parenting capacity.
I am thus satisfied on the findings made by me including the acceptance of the court child expert’s opinion that orders for X to spend time with the father – even on a limited basis as proposed by the father- would result in X being at unacceptable risk of harm arising from the cumulative risk of:-
·X being further exposed to the father occasioning family violence upon a new partner;
·The father perpetrating violence upon X;
·The father not appearing to have the capacity to understand and provide for X’s emotional needs;
·Further trauma to X being exposed to a person who has been a source of trauma for him in the past; and
·The possibility that X spending time with the father will trigger the mother’s anxiety; and thus may have a negative impact on her parenting capacity.
These risks cumulatively are unacceptable as the father has failed to address his behaviour by firstly acknowledging it, and then taking steps to address it.
Thus the question to be determined now is – are there any orders that can be made that sufficiently ameliorate this unacceptable risk?
Whilst the making of orders for supervised time is an exercise of discretion, the Full Court has given specific guidance where such orders are to be made for an indefinite or indeterminate period: see Moose & Moose [2008] FamCAFC 108. Clear reasons are to be provided when such an order is made: Gorman & Huffman & Anor [2016] FamCAFC 174.
As a matter of fairness the question of permanent supervision was never put to the mother in cross-examination. The court child expert was clear in her evidence that she did not support interim orders for supervised time. Her oral evidence was that the advantages that X might gain from even orders for supervised time with the father would be outweighed by the disadvantages:
So, there are advantages to a child having contact with a parent, obviously. It’s important for a child to be aware of their – their identify and their heritage. If they can have a positive relationship with a parent that – that is a – a good and useful thing. In this particular case, what we know, that a relationship with a perpetrator of coercive and controlling violence can have a negative impact on a child’s mental health. It can lead to them having – having distorted and concerning views of relationships as they grow up and it can have serious negative effects. Also, the lack of insight that [Mr Chabon] showed during our interviews in regard to understanding how difficult that a reunion might be for [X] and being able to consider ways that he might need to repair that relationship suggested to me that it’s unlikely that that would be a positive relationship for [X].
It was not raised with the court child expert for the benefit of the court having her expert opinion as to the potential impact on X of long-term supervision of her time with the father and the possible advantages and detriment to X and the potential impact on the mother. The father did not seek leave to reopen his case.
There is no evidence as to the practical nature of how such long-term supervision time would occur including the payment of same in circumstances where neither party is employed. There is no evidence as to the practical long-term effects on X of such an order. I cannot make determinations as to X’s best interests in an evidentiary vacuum. I cannot make an order on the evidence before me that long term supervision of X’s time with the father is in his best interests.
I am not satisfied that X’s time with the father occurring on a supervised basis would sufficiently ameliorate the unacceptable level of risks the father poses to X. Whilst I am not bound by the competing proposals of the parties, there is no evidence before me at all as to how and if supervised time would be in X’s best interests. I will repeat, I cannot make orders in an evidentiary vacuum.
No evidence was presented nor submissions made as to “identification contact.” In circumstances where X has a limited relationship with the father and no evidence to support it, I can not be satisfied that such an order would not be in X’s best interests.
Injunctive Orders
Both the father and the Independent Children’s Lawyer seek an order restraining the mother from subjecting X to any form of physical punishment. The mother did not make any submissions opposing such an order. Whilst I have made no findings that the mother has physically punished X, in circumstances where the mother made no submissions opposing such an order I am satisfied that it is in X’s best interests that this order be made.
Travel Overseas Orders
Both parties seek orders permitting X to travel overseas. The father seeks to limit such overseas travel to Hague Convention countries. In oral evidence however the father agreed that the mother could take X overseas on holidays to Country B. No submissions were made by either the mother or the father as to the issue of overseas travel. There was no written evidence by either party filed to support the relief sought by them. I am unable to make orders in an evidentiary vacuum and make no orders as to overseas travel. The mother is at liberty to file an application in the future as to a specific trip she wishes X to undertake overseas if she is unable to obtain the father’s consent.
X has not had any form of communication with the extended paternal family subsequent to the parties’ separation. The mother’s evidence is that this was due to the “abuse” occasioned by the paternal grandfather upon the maternal grandmother but conceded in cross-examination that by “abuse” she meant verbal arguments. The mother was not able to proffer an adequate explanation as to why she has not facilitated facetime calls between the paternal grandparents and the wider paternal family in Country B and X. There is no evidence that non face to face time would pose risk of harm to X. The father however did not seek any orders that X have any form of communication with the extended paternal family in the event X is not to spend any time with him. The court child expert was not asked for her opinion as to what, if any, potential effect such communication may have on X and the mother were it so ordered. I thus do not make any orders for such time to occur.
Costs of the Independent Children’s Lawyer
The Independent Children's Lawyer seeks an order that the father pay one half of her costs in the sum of $5,760.80. No costs are sought from the mother as she is legally aided.
The father did not engage with the application for costs.
The general rule in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) that each party bear their own costs does not apply to cost applications involving other persons or the Independent Children’s Lawyer, even though an Independent Children’s Lawyer is somewhat analogous to a party: see In the Marriage of McDonald (1994) FLC 92-508 and Gahen & Gahen (No 2) [2013] FamCA 936.
The court must not make an order as to costs in favour of an Independent Children’s Lawyer if the party has received legal aid in the proceedings, or if the court considers the party “would suffer financial hardship” as a result of an order to bear a proportion of the Independent Children’s Lawyer’s costs. It has been held that the intention of section 117(5) of the Act is to provide protection to the public purse, and parties who can contribute towards the costs of the Independent Children’s Lawyer should do so: De Roma & De Roma [2013] FamCA 566.
There is limited evidence as to the father’s financial circumstances. His oral evidence is that his weekly income is between $1,500 and $2,500. The father privately funded his legal representation.
I accept the submissions of the Independent Children's Lawyer that in these circumstances the father should be given time to pay any costs order and that such order be subject to any waiver from the Legal Aid Commission of New South Wales on the basis of his financial circumstances. I find that it is appropriate to make the orders for costs as sought by the Independent Children’s Lawyer.
CONCLUSION
I have found that X is at an unacceptable risk of harm were he to spend time with the father and that such risks cannot be sufficiently ameliorated. Even if I were to have not found such an unacceptable risk, ultimately there is simply no evidence to ground a finding that it is in X’s best interests to spend time with the father, even on a supervised basis. Whilst the court child expert opines that a recommendation for X to spend no time with the father is not dependent on a finding of family violence considering X’s hesitance to discuss or engage in any conversation relating to the father, X has witnessed the father perpetrate serious acts of family violence upon the mother with one incident involving non-lethal strangulation. The psychological risks to X in then being required to re-establish a relationship with the father are unknown but I accept the court child expert’s opinion that such reintroduction of time would be anxiety inducing for X. There is clear evidence of the risks to X of the father perpetrating physical violence upon him or X witnessing the father’s perpetration of family violence upon a new partner.
I am not satisfied the father has undergone the necessary changes for him to appreciate his actions and to ensure that he does not continue to perpetrate family violence in the future. I thus will make orders as sought by the mother and the Independent Children’s Lawyer that X spend no time with the father.
I certify that the preceding two hundred and four (204) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 10 November 2023
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