Channa & Duhan
[2023] FedCFamC2F 1066
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Channa & Duhan [2023] FedCFamC2F 1066
File number(s): BRC 2700 of 2019 Judgment of: JUDGE COPE Date of judgment: 24 August 2023 Catchwords: FAMILY LAW – parenting – where one child aged 9 years – father perpetrated family violence towards the mother – where the child was exposed to family violence perpetrated by the father towards the mother – presumption of equal shared parental responsibility does not apply – not in the best interest of the child – child live with mother– child spend no time with the father Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VII ss 60B, 60CA, 60CC, 60CG, 61F, 65AA, 65D, 65DAA
Cases cited: M & M [1988] 166 CLR 69; [1988] HCA
Mazorski & Albright [2007] 37 Fam LR 518;
MRR v GR [2010] 240 CLR 461; [2010] HCA
Division: Division 2 Family Law Number of paragraphs: 132 Date of hearing: 8 May 2023 & 5 July 2023 Place: Brisbane & Cairns Counsel for the Applicant: Mr Cameron of Counsel Solicitor for the Applicant: Stolar Law Counsel for the Respondent: Mr Jones of Counsel Solicitor for the Respondent: Brisbane Line Lawyers Counsel for the Independent Children's Lawyer: Ms Chesterman of Counsel Solicitor for the Independent Children's Lawyer: Stewart Family Law ORDERS
BRC 2700 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CHANNA
Applicant
AND: MS DUHAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
24 AUGUST 2023
THE COURT ORDERS THAT:
1.The Mother will have sole parental responsibility for the child, X born in 2014 (“the child”).
2.The child will live with the Mother.
3.The child will spend no time with the Father.
4.Pursuant to s.11 of the Australian Passports Act2005 (Cth) the Mother be permitted to do all acts and things necessary and sign all documents to apply for and maintain a current passport for X born in 2014, notwithstanding that the father may not have signed the passport application or renewal forms.
Other Orders
5.The Independent Children’s Lawyer be discharged thirty (30) days from the date of this order, or in the event that an Appeal is filed, at the conclusion of that Appeal.
6.All outstanding applications be dismissed and the matter be removed from the pending cases list.
AND THE COURT NOTES THAT:
A.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
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 COPE
These proceedings are in relation to the parenting arrangements for the child X born in 2014. X is nine years of age.
The parties to the proceedings are the child’s parents. The parents entered into an arranged marriage in Country B in 2012. They relocated to Australia in 2013. The parents separated following an incident of family violence in May 2017. The child was two years old at the time.
The mother returned to Country B in 2017 with the child. The child did not return to Australia until February 2019. The father had no contact with the child during that time.
The mother re-partnered with Mr C in 2018 and they have two children. The mother is a permanent resident of Australia and is in the process of applying for citizenship.
The father re-partnered with Ms D in 2020. They are engaged and plan to marry. The father’s original spouse visa was cancelled following the parties’ separation in 2017. He has since applied for a spouse visa with his current partner and also a refugee visa as he was the victim of a violent attack in Country B.
History of proceedings
The father filed an Initiating Application on 8 March 2019. The child was placed on the watch list in accordance with the Orders made on 20 May 2019.
Consent interlocutory orders made on 16 October 2019 provided for the child to live with the mother and have no time with the father.
The father did not spend time with the child until orders were made on 15 June 2020 for reunification counselling between the father and the child with E Family Centre. Following that, time was to commence between the father and child from 2:00pm until 3:00pm each alternate Saturday at McDonalds.
Current living arrangements
In accordance with interlocutory consent orders made on 7 June 2021, the child lives with the mother and spends time with the father each alternate Sunday from 9:00am to 5:00pm during school term and each Sunday and Monday from 9:00am to 5:00pm during school holidays.
Further consent orders were made on 2 December 2020 to add communication between the father and child through WhatsApp or other electronic means each Wednesday and Friday between 6:00pm and 6:30pm.
Competing Proposals
The father
The father seeks orders for equal shared parental responsibility.
He proposes a rapid build-up of time with the child, with an immediate introduction of one overnight, increasing after two fortnights to two overnights and then increasing after another two fortnights to three overnights, being alternate weekends from after school Friday through to the start of school on Monday. He then proposes a week about arrangement during school holidays.
The father seeks provision for time on special days, changeovers, communication between the parents, phone or video calls with the child twice a week, with a mobile phone to be provided to the child, and some standard orders for non-denigration, authorities and notifications.
He seeks orders that the child not travel overseas travel until she is 16 years and remain on the watch list until then.
The mother
The mother proposes orders that she have sole parental responsibility, the child live with her and have no contact with the father. The mother also seek orders relating to the issue of a passport for the child.
It is noted that in the family report interviews, the mother proposed that the child decide her time with the father, however this was not pressed at trial.
The Independent Children’s Lawyer (ICL)
The ICL proposed orders in the same terms as the mother save for the passport issue.
Family Violence Allegations
The parents were represented through s 102NA funding, being commonwealth funded legal representation intended to protect victims of family violence.
Although there is no current Protection Order in place, the mother makes allegations of severe and ongoing family violence.[1] Three significant events of physical violence are alleged by the mother to have occurred in October 2016 and May 2017.
[1] Family Report dated 29 March 2023, paragraphs 64-78 and 113
As to the events of October 2016, the police record of what was seen and heard on that day is as follows:
At approximately 11:15am [in] October 2016, police from [Suburb F] attended (blanked out) in relation to a loud and violent disturbance. Upon arrival, police could hear a male voice yelling inside the dwelling and as police have approached the front door, have heard the sound of a female person crying. Police have then entered the dwelling and located the aggrieved sitting on the couch in the lounge room. The aggrieved was visibly upset and crying, holding her arm in pain. Police sighted the respondent pacing up and down the hallway in an agitated and aggressive state yelling towards the aggrieved. Police also observed a chair which had been flipped over in the lounge room.[2]
[2] Exhibit ICL1, Tender Bundle of ICL, p.41
The father admits to physically assaulting the mother in October 2016. Photos depicting these events are included in the police subpoenaed material and are also annexed to the mother’s affidavit material.
The events of May 2017 were reported by the mother in the Queensland Police Service (“QPS”) Statement of Witness annexed to her material[3], and includes the following:
[3] Mother’s affidavit filed on 17 November 2022 at D2
…
6. [Mr Channa] has been living with me for the past 5 months as I have given him approval to do so.
7. In the last 4 months, [Mr Channa] has been abusive to me on a number of occasions.
8. Recently, he has been accusing me of having an affair with another person and has been yelling abuse at me. We talk in [Country B] language and his words translate to something like ‘fucking bitch’. He also says things like if you have a relationship with another person I will kill you and I will kill myself. He has also threatened to leave me and take my daughter with him to [Country B] should police be contacted.
9. This morning this happened again whilst in the bedroom and I told him that I don’t want to live with him anymore. He then grabbed me by my arms and has pushed me to the ground. I believe that I has lost consciousness as I could not recall what happened for a moment. He has then started to slap me around the face which hurt me. I said that I am going to call police.
10. [Mr Channa] then grabbed both my wrists and he started to slap his own face with my hands and I could do nothing to stop him. He then started saying that I will kill myself if you call the police. He then grabbed my mobile of me and would not give it back. I tried to leave the bedroom but he grabbed at me and pulled me back on to the bed. He started saying things like give me one chance, why are you doing this to me.
11. [Mr Channa] then rang some of his friends who told him to leave and go to work.
12. [Mr Channa] left for work at about 12:00pm.
13. I then left the house and went to police to advise them of what is and has been happening. I do not want [Mr Channa] to live at my place anymore and take back my offer for him to stay there.
14. I spoke to [Officer G] and gave him this statement.
The events of May 2017 were reported by the mother in the QPS Statement of Witness annexed to the Tender Bundle of the ICL and includes the following statement reported to the QPS: [4]
At the nominated date and time the suspect has attended the dwelling of the aggrieved and entered the dwelling through an unlocked rear door in the kitchen. The suspect has then entered the bedroom of the aggrieved and snatched her phone out of her hand, using his right hand. The suspect has then run down the hallways and into the lounge room of the dwelling, with the aggrieved following. The aggrieved has attempted on multiple occasions to retrieve her phone from the suspect. The aggrieved then told the suspect that he could keep the phone and she has attempted to leave through the front door to alert a neighbour. The suspect has grabbed the aggrieved from behind with both his hands wrapped around both of her upper arms. The suspect has then pushed the aggrieved down into a sitting position on the bed in the lounge room and asked her to withdraw her complaint to the police against him. The suspect returned her phone after the aggrieved threatened to phone police. The aggrieved has attempted to leave the dwelling via the rear kitchen door and the suspect has again followed her. The aggrieved then ran outside into the street and phoned police. The suspect was last seen decamping via his [vehicle]
…
[4] Exhibit ICL1, Tender Bundle of ICL, p. 41
The mother’s evidence is that abusive communications are ongoing, that they have occurred two or three times over the phone such that she no longer calls the father. However this evidence and other allegations in her outline of case document are not in her affidavit material.
Issues for determination
The issues for determination include as follows:
(a)Whether the father has perpetrated family violence and to what extent;
(b)If so then whether the child was exposed to that family violence;
(c)Whether the father has insight into the child’s needs;
(d)Does the mother have capacity to facilitate the child’s relationship with the father?;
(e)Whether each party’s background of depression and suicidal ideation remains an issue; and
(f)The reasons why the child is resistant to time spending with the father.
Those findings then lead to a determination about the following issues:
(a)Should the parties should have equal shared parental responsibility or should the mother should have sole parental responsibility?
(b)What, if any time should the child spend with the father?
(c)Should the child be able to travel overseas – specifically to Country B – prior to turning 16 years of age?
THE EVIDENCE AND WITNESSES
In reaching this decision I have considered the court documents relied upon by the parties and other documents as tendered by the parties, together with the evidence of the parties and the witnesses under cross examination.
The father relied on the following material:
(a)Amended Initiating Application filed 11 November 2022;
(b)Affidavit of the father filed 4 November 2022;
(c)Affidavit of his partner, Ms D filed on 13 April 2023; and
(d)Outline of case document filed 13 April 2023;
(e)Child Impact report dated 11 November 2022; and
(f)The Family Report dated 29 March 2023.
The mother relied upon the following material:
(a)Outline of case document filed 1 May 2023;
(b)Amended Response filed 17 November 2022;
(c)Affidavit of the mother filed 17 November 2022;
(d)Affidavit of mother filed 9 May 2019; and
(e)Notice of Child Abuse, Family Violence or Risk filed 9 May 2019.
The Independent Children’s Lawyer upon the following material:
(a)Case Outline filed 6 April 2023;
(b)The Family Report dated 29 March 2023; and
(c)Child Impact Report dated 11 November 2022.
Where I have made statements of fact or expressed a view, those are to be read as findings. Where I have made findings, those findings are clear on the face of these reasons and have been made on the balance of probabilities as required by s 140 of the Evidence Act 1995 (Cth).
The Father
The father had requested an interpreter to interpret word for word but at times did not need that benefit.
The majority of cross examination on behalf of the mother focussed on the family violence dating from 2017 and 2018. During that part of the cross examination he spoke with little animation. He was calm almost placid; speaking very quietly. I considered that at times he was obstructive; he did not always answer the question; at times repeating long self-serving answers, particularly about the allegations of family violence.
When it came to the details of the alleged family violence in late 2016 his answers were most often “I can’t recall”, “I can’t remember” or “I don’t know”. He conceded that on this occasion he hit the mother, that he had committed family violence and that he needed to do the changing behaviours course in order to change his behaviour. He denied that the child was present in the room during these events, but when pressed became uncertain. Only when confronted with the photos did he concede that the child was present during the physical violence. He was insistent that this was the only occasion of such behaviour and that the parties were both arguing. Given his poor recall and changing evidence about this event I do not accept his evidence about that.
He was consistent in his evidence about the cause of the dispute being the mother’s wish to send the child to Country B rather than financial matters.
He disputed the police records that reflected the mother upset and crying on their arrival. Given his reported poor recall of the events I prefer the evidence set out in the police records.
The father’s evidence was that this was the first and last incident and that he regretted it; that he is trying to be a better person and to change himself.
He denied the alleged incidents of physical family violence in May 2017. He also denied attending at the mother’s work place or contacting the mother on numerous times by phone in August 2017. He was consistent about those matters, however I am conscious that he had earlier been confident that the child was not present for the assault in 2016.
The father conceded the police called him in early May 2017 and told him not to return to his home, but denies the alleged events of physical violence as the cause. His evidence around the request to attend the station to be interviewed was evasive, roundabout and long winded. He conceded that he did not want the relationship to end but denied taking any of the forceful measures alleged.
I accept the submission that it is completely unbelievable that the father said “okay that’s fine” when the police called him in 2017 and told him not to return home. If indeed he had not done anything further after the first incident in 2016 this makes no sense. To suggest that he did not even question that direction but rather placidly accepted it is a bridge too far. On his evidence there had been no argument that day and if that was the case the call must have been a complete shock. And yet he asks the court to believe that he just shrugged his shoulders and walked away. I do not accept that evidence.
The father’s evidence about the family violence on 7 October 2016 changed to include further concessions when he was shown the photos. I formed the view that he was an unreliable historian as regards family violence. I do not accept his evidence about the mother’s allegations of family violence in 2017 and his reaction to being told not to return home for those reasons.
The father has now done the men’s behaviour change program twice, giving evidence that he repeated it as he found it so beneficial. Because I accept the mother’s evidence about the allegations of family violence in 2016 and 2017, I formed the view that the father repeated the program because he needed to do so, noting that he was part way through the course when those events occurred in 2017.
He was asked about his father electrocuting the mother. While he gave evidence denying this was a deliberate act, he was not there and can only rely on accounts from his family. I place no weight on this hearsay evidence.
The mother complains that the child did not return to Australia earlier because the father did not sign a document consenting to the travel. That document was not produced, however I accept the father’s evidence that the mother asked him to sign a blank paper. He is clearly a loving father who wants to spend time with his daughter and I accept that he would have done what was necessary to have her return to Australia.
I accept the father’s evidence that he does not want to return to live in Country B and that he cannot envisage not being successful in his visa applications – one as a refugee and the other a spouse visa. I accept the father’s evidence that he would be unable to return to Country B if X was there due to safety issues.
I accept the father’s evidence that he believes that if there is no set time for the child to spend with him that it will not occur.
The father accepted that the child told the family report writer that she did not want to spend time with him and that she did not want to call him dad. I also accept that he does not understand why she is saying such things.
The father and his current partner deny family violence in their relationship. His evidence is that he can speak loudly and that may be what the child has identified as yelling. At no time during his cross examination did he talk loudly - in fact at times I had difficulty hearing his evidence, however he denied the specific allegations made.
There are no family violence proceedings or police involvement between the father and his partner. I have no reason to doubt his evidence about those matters, although I can understand why the mother does so given her own experiences of the father.
The mother
The mother was initially a challenging witness. She did not answer questions directly but gave self-serving responses about the father’s failures and abusive conduct, at times speaking over counsel while the question was still being framed. It took several requests for her to cease this conduct.
Although she also requested an interpreter, in the main she did not rely on that interpreter other than for questions regarding the family report.
In the main she was a quietly spoken witness and experienced some distress in the witness box. I am satisfied that she was taking care to answer questions honestly. I am however satisfied that she does not encourage the child’s relationship with the father. Telling the child he is her biological father and showing her photos is not encouragement – it is simply stating facts. By allowing the child to call her step-father “dad” the mother is again not encouraging the relationship between the child and the father.
I am satisfied however that she is acting in what she believes to be the child’s best interests, but remains burdened by the events of family violence.
Ms D - The father’s partner
Ms D was a sensible and thoughtful witness. I have no reason to doubt her evidence. She has been present for some of the father’s time with the child. Because she works, her work commitments at times prevent her attendance. She is currently the bread winner in the family as the father’s current visa does not allow him to work.
I accept her evidence that when she has been present, the time between the child and the father has gone well other than a few times when X was “moody”. She gave evidence that at times X was a little bit rude to the father but that he responded calmly and worked to make her feel good and enjoy her time with him.
I accept her evidence that she and the father have a good relationship that is free of family violence. She described the father as a good person, conceding that she could only speak to her time with him.
Family Report Writer – Ms H
The family report writer had prepared a Child Impact Report in 2022 and then the Family Report which was released in April 2023.
In the family report she recommended that the child live with the mother and that there be no orders for the child to spend time with the father. She was cross examined by the father’s counsel about the basis for this recommendation, which is usual given X’s young age.
When asked whether the child’s opposition to time spending flowed from the mother’s own negative view of the father, the family report writer’s opinion was that it was more complicated than that. In essence her opinion is that the mother has a negative view of the father based on her own reported experiences and the child may or may not have been influenced by that. She explained that if someone has a negative view of another person then they interpret information through that negative lens and that can distort the information; it is essentially a confirmation bias. She also considered the possibility that the child may be embellishing stories about her father because she does not want to spend time with him and the mother is ambivalent. In her opinion an interplay of those factors have led to the current situation.
In her opinion it is not a matter of extreme alignment by the child with the mother.
In her view there is nothing that can be done to repair the situation.
She was of the opinion that family therapy would not help in this case. The basis of this opinion was that the child had almost two years of no contact from 2017 - 2019 and only limited contact since. Further, while the father said he wanted more time with the child, when the mother gave him opportunities to do school pick up and drop off and to attend sports he was not able to do that, such that in her view there is a question as to his capacity. In short her opinion is that there is no relationship to salvage and that it is, in effect, too late.
This was persuasive evidence and I accept the opinions of the family report writer.
Findings
Whether the father has perpetrated family violence and to what extent
I am satisfied and the father concedes the family violence events in October 2016. In particular that he “lost his temper” and “hit her”. He also conceded that this was a serious act of domestic violence.
I accept the submissions for the ICL and the mother that the father also minimised this event. For example his evidence that the mother started it, that he denied she was crying, then said that he was too, and the denial that the child was present when in fact she was.
I have also made findings that I prefer the mother’s evidence to that of the father regarding the events of 2017 such that I am satisfied that there were two more events involving physical family violence as alleged by the mother.
I also accept the mother’s evidence around the excessive number of phone calls, the father demanding that she retract her complaints and the threat of self-harm if she left him.
All those events are in or around the time of the devolution of the relationship and I have no doubt that feelings ran high.
If so then whether the child was exposed to that family violence
The photos show and the father concedes that at least for the 2016 event the child was present. He also concedes that she would have been distressed to witness her father assaulting her mother. I find that the child has been exposed to family violence.
Whether the father has insight into the child’s needs
I am of the view that the father has some limited insight into the needs of the child.
He was much more animated when talking about the child. I accept his evidence as to their at times positive engagement. I accept that he genuinely believes the mother is attempting to prevent his relationship with the child.
He does not know why the child is saying she does not want overnight time. He spoke positively of their time together and her election of a bedroom with a request for a pink bed. He became distressed when discussing his wish to increase his time with her but made sensible concession that his proposal may be moving too fast. I accept his distress as genuine.
While he conceded that the child may struggle separating from the mother and that their long separation impacted their bond, his evidence was that transitions had improved. The mother’s evidence was to the contrary; that the child cried at handovers and complained after as to the father’s conduct, with the mother contacting the father about that on at least one occasion.
The expert and independent reports of the father/child relationship moved from largely positive in 2019/2020 regarding the reunification, through to increasingly negative observations and opinions in the s65L report dated 1 May 2020, the Child Impact Report released on 14 November 2022 the Family Report released on 3 April 2023.
So this was not just a one off occasion when the child was negative towards and about the father. In the face of these reports together with the mother’s reports, I do not accept that the child displays no such behaviour with the father. Further I accept the family report writer’s opinion that there is no extreme alignment of the child with the mother which might explain her negativity to and in the presence of the mother and the family report writer.
In the event that I am wrong about that then I am of the view that for the child to put on an act for the family report writer and her mother, as the father seems to suggest, also places her at risk of harm.
Does the mother have capacity to facilitate the child’s relationship with the father
The mother sent the child to Country B for almost two years. Her evidence is that she did so because the father was not supporting or assisting her and she had to work. I accept the mother’s evidence about that, however to send a very young child to a different country is a drastic solution indeed. And for that time to extend to almost two years during which she did not facilitate any communication between the very young child and the father speaks volumes as to her intentions and views about the father/child relationship. The mother’s evidence is that the father consented to the travel but, if he did so, I doubt whether he expected it to be for such a long period of time. I accept the father’s evidence that he was unable to make any applications for the child’s return as he was neither a permanent resident nor a citizen.
I accept the father’s evidence, which was unchallenged, that the mother has never provided him with a school report or information about the child’s education. He has an obligation to inform himself but the mother also had an obligation as the primary carer to share information.
I do not accept that the mother encourages and facilitates the child’s relationship with the father. Telling the child he is her father, showing her photos of the father and telling her about the relationship is imparting facts. Encouragement involves urging the child to see the father, talking positively of the father and encouraging the child to speak positively about the father.
Having seen the mother in the witness box, I am of the view that her own negative experiences of the father mean that she is expecting bad news and interprets anything the child tells her through that negative lens. It is unsurprising that the child then imparts negative stories to the mother about the father and her time with him.
Whether each party’s background of depression and suicidal ideation remains an issue
Neither party led evidence or cross examined about this issue. It was not an issue of concern for the family report writer. I am satisfied that there is no evidence that either party’s mental health is a matter of current concern.
The reasons why the child is resistant to time spending with the father;
I accept the opinion of the report writer that this is not a matter of extreme alignment but rather a “perfect storm” of factors which has led to the child’s intractable position.
THE LAW
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). I will be generally guided by s 60B which sets out the objects of Part VII of the Act and the principles underlying it.
In making parenting orders, s 60CA and s 65AA provide that the best interests of the child are the paramount consideration.
Section 60CC prescribes the various best interests considerations that the Court is obliged to consider in arriving at its determination.
Section 60CC (2) sets out the two primary considerations, described by Justice Brown in Mazorski & Albright [2007] 37 Fam LR 518 as “twin pillars”. The court is required to give greater weight to the second of the primary considerations.
The additional considerations are set out in s 60CC(3). The court is required to consider all of those issues including parental capacity, the extent to which each parent has fulfilled their parental responsibilities cultural matters and family violence. No greater weight is placed on any particular additional consideration.
Any Order made must be consistent with any family violence order and not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount. [5]
[5] The Family Law Act 1975 (Cth) s 60CG
In M & M [1988] 166 CLR 69, the High Court held that a parenting Order ought not be made if such Order exposes the child to an “unacceptable risk” of harm. The “unacceptable risk” test has since been authoritatively applied to any potential risk of harm to a child, and is not limited to sexual abuse. I am to consider “unacceptable risk” in light of each party’s parenting proposals and the availability of any appropriate safeguards.
In MRR v GR [2010] 240 CLR 461 the High Court stated that ss 65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time.
A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting Order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.
APPLICATION OF THE LAW TO THE CIRCUMSTANCES OF THE CASE
S 60CC(2) The primary considerations are:
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
The father easily conceded that the mother was a good mother. The relationship in question is that of the child with the father. If the child is as resistant as the family report writer says I accept her evidence that to force time may further damage not only the father/child relationship but more importantly the child.
On the father’s evidence he has a good relationship with the child but this is not supported in any of the expert reports, and there are five of them.
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Counsel for the mother identified and I accept that there are two areas of risk. The first is the more narrow risk of exposure to family violence. The second is the more broad area of risk of emotional harm.
As the narrow risk of harm from family violence, I am satisfied that there was a high risk at and around the time of separation and that the child was exposed to that family violence. I accept the submission that even the presence of the police was not sufficient for the father to desist from his abusive conduct in 2016. I accept that the father minimises his conduct on that occasion and denies other events.
I am however satisfied that the risk has been ameliorated since then. The father has done the men’s behaviour change twice. I am of the view that he knew he needed to do it again in order to improve his conduct and so he did.
The father has been in a relationship with his current partner for five years. This is not a new relationship and for a good part of that relationship, since March 2019, the father has been involved in family law proceedings. That is a stressful process. During that time there has been no police involvement and no evidence of any family violence in that relationship, other than what the child has said to the mother.
I am of the view that I can place little weight on what the child has reported because of the mother’s inability to facilitate the relationship and her willingness to accept or perceive reports of the father negatively. The child impact report reflects the child saying that she advises her mother if the father does “something wrong”. She then sits beside her mother while the mother calls the father about it and then the father sometimes asks to speak to her and tells her off for “lying”. This means that the story telling garners the child’s attention and that in some ways she is rewarded. Also I am of the view that the child is well aware that her parents do not like each other. She told the family report writer that they do not speak to each other, which is not the conduct of friendly people. I interpret what she says in this context and agree with the report writer that there are multiple possibilities about how the child has come to this oppositional stance.
As to the second more broad area of risk - that of emotional harm to the child – I am satisfied that this is a current serious risk of harm to the child. A review of the independent and expert evidence garners the following devolution in the father/child relationship:
(a)The supervised contact in late 2019 and early 2020 when reunification occurred were largely positive.
(b)The s65L report dated 1 May 2020 gives evidence of an uncomfortable father /child interaction with the child experiencing emotional distress – “I decided to cut short the observation as the child was observed to have become increasingly anxious and distressed by the situation”.[6]
(c)In the Child Impact Report released on 14 November 2022 the child spoke negatively of her father, described him as verbally “aggressive”, “talking loudly” and “swearing”. The family report observations were of a negative relationship with the child. The child was reported to say that the father was “pretending to be kind but I never feel comfortable with him”.[7]
(d)The Family Report released on 3 April 2023 reflected a worsening situation. The report writer described the child as “hostile and rude” to the father, the child refused to interact with him, and was extremely critical of the father. Although the father was reported to be appropriate with the child, remaining calm and friendly and giving her space, the ongoing and outright rudeness of the child to the father is extraordinary.
[6] Family Report dated 1 May 2020 paragraphs 15 - 19
[7] Child Impact Report dated 14 November 2022, paragraphs 13 - 18
If what the child says is true about what occurs in the father’s home - even in part – and it is causing her such distress and causing her to reject the father, then to force her to go may cause further harm. If on the other hand what the father says is correct and that the stories are untrue, and indeed that once the child is with him she is happy and enjoys her time, she is nonetheless consistently reporting otherwise outside the home for reasons that have not been identified. The report writer is confident that there is no extreme alignment with the mother, but whatever the cause no good can come of it. I am of the view that the risk of emotional harm in either case is very high indeed.
The view of the family report writer is that nothing now will ameliorate the damage to the father/child relationship.
S 60CC(3) The additional considerations are:
S 60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child is stridently opposed to spending any time with the father. She has been consistent in those wishes and in her rejection of the father. The last independent positive reports are from the supervised contact in early 2020 – over three years ago.
S 60CC(3)(b) The nature of the relationship of the child with each of the child’s parents and other persons (including grandparents or other relative of the child)
There is no dispute but that the child has a warm and loving relationship with her mother and stepfather. The issue is her relationship with the father.
The father’s evidence is that after the child’s return from Country B, it took some time to rebuild their relationship. His evidence is that a few months before the trial there had been a turning point and that the child’s behaviour at the family report interviews was a one off; that it had never happened before. This is clearly not the case as she was also negative about the father in her interview for the Child Impact Report in 2022. And in the s65L report released in May 2020 the observation did not go well and the father expressed to the report writer that the child seemed scared of him. I am satisfied that this is an ongoing problem.
I accept the father’s evidence that he loves his daughter and is focussed on her rather than on the legal case. However the child is repeatedly sending a very different message.
S 60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major, long term issues in relation to the child; and to spend time with the child; and to communicate with the child.
I accept the father’s evidence that the reasons he missed time with the child for eight weeks was due to surgery and two bouts of Covid. I accept that he would not willingly miss time with the child. I accept his evidence that the parents have managed to swap days to facilitate parties and family commitments.
I accept the father’s evidence that the mother shares information when he makes the enquiry. I accept the mother’s evidence that the father last made such an enquiry in or about January 2023.
I accept the mother’s evidence that she offered the father the opportunity to take the child to and from school and to sports lessons and that he in general failed to take advantage of those opportunities.
S 60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
This was not a focus of submissions. I have nothing to add.
S 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
This relates back to risk factors. The father seeks a rapid increase in time such that within about three months the child would spend alternate weekends and half school holidays with him. Even if there was a positive father /child relationship of any sort the court would be reluctant to order such a rapid progression. Where there is such a poor relationship I am of the view that such proposal would place the child at risk of further harm and reflects poorly as to the father’s insight into the needs of the child.
S 60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The parties currently live 15 minutes apart. This is not a relevant issue.
S 60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
Neither parent suggest that the other is unable to meet the child’s practical day to day needs. In fact the father says the mother is a good mother. I accept that she has a proven capacity to meet the child’s practical needs.
I have doubts about each party’s capacity to meet the child’s emotional needs. Because of the mother’s reported experiences, I have formed the view that she struggles to encourage and facilitate the relationship between the father and the child. This was confirmed by her evidence under cross examination that she only provided information about the child to the father if he asked and that did not want to communicate with him but that she would provide him with information about the child in future if she was ordered to do so.
I am of the view that the father does not have the capacity to meet the child’s emotional needs. This is based in a large part upon his insistence on the rapid progression to alternate weekends and half school holidays in circumstances where the experts have repeatedly noted the child’s resistance and distress.
S 60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
The child X is a nine year old child. She is in Grade 4. She and both her parents are of Country B heritage.
S 60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right.
Not applicable
S 60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
I have nothing to add.
S 60CC(3)(j) Any family violence involving the child or a member of the child’s family and S 60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order.
This has already been addressed in detail.
S 60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
These proceedings have been on foot since March 2019. There have been five reports all involving the child – being the Child Inclusive Conference on 30 May 2019, the Child Inclusive Conference on 19 November 2019, the section 65L report released 1 May 2020, the Child Impact Report released 14 November 2022 and the Family Report released on 3 April 2023.
No one asks the court to make interlocutory orders and indeed if they had I would be most reluctant to subject this child to further interventions. The phrase “systems abuse” springs to mind at the very thought.
S 60CC(3)(m) Any other fact or circumstance that the court thinks is relevant.
I accept each parents evidence that they will abide by court orders however unpalatable they may be to them individually.
It is most unusual in family law proceedings, and indeed disappointing that neither parent completed a parenting orders program to learn how to better co-parent.
DETERMINATION
Parental Responsibility
The presumption of equal shared parental responsibility does not apply due to the conceded family violence, the findings this court has made and the fact that a Protection Order was previously in place.
I am not satisfied that it would be in the best interests of the child to order equal shared parental responsibility, and indeed I am satisfied that it would be unworkable, for the following reasons:
(a)The poor co-parenting relationship;
(b)The history of family violence, including the father’s minimisation and denials of his conduct;
(c)The child opposition to time and the stories that she imparts to the mother further undermine any capacity to work together; and
(d)The exposure of the child to the family violence between the parties.
Time Spending
The court does not generally place significant weight on the wishes of a nine year old child. In this case however, the court is paying regard to something other than wishes. It is the risk of emotional harm that may flow to her if that time was ordered.
I accept the submission that it does not matter how we got here. I am of the view that each parent could have done things better. We must however deal with the reality of the situation now. It is unusual that a family report writer supports no time between a father and child when the child is still so young. I specifically queried why she was not suggesting reunification therapy. In short however her opinion is that it is too late to repair the situation and that to attempt it would cause further harm to the child. I accept her opinion that there is no relationship to salvage and further that the father’s failures to take opportunities for involvement when offered by the mother raises questions as to his capacity.
I therefore do not propose to make the orders as sought by the father as I accept the opinion of the family report writer that this could cause more harm than good for this child.
I will therefore make orders in terms proposed by the mother and supported by the ICL for there to be no contact between the father and the child, in order to protect the child from future harm.
Overseas Travel
The father was content for the mother to travel overseas with the child – just not to Country B until the child was 16 years
I accept that he is genuinely concerned about the child travelling to Country B given that the mother has previously left the child there for almost two years. I also accept that he believes Country B is not safe and that relationships can be facilitated by the maternal and paternal grandparents travelling to Australia.
However given that I am making orders for the mother to have sole parental responsibility and that there be no contact between the child and the father, I will not make any such restraints. I am satisfied that the mother will use her best endeavours to ensure the child’s safety in the event that they travel to Country B.
IN CONCLUSION
I am satisfied that the orders set out at the commencement of these reasons are in the best interests of the child
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 24 August 2023
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