CORLA & TEBELLO
[2016] FamCA 429
•2 June 2016
FAMILY COURT OF AUSTRALIA
| CORLA & TEBELLO | [2016] FamCA 429 |
| FAMILY LAW – CHILDREN – PARENTING ORDERS – where father poses an unacceptable risk of harm – where presumption of equal shared responsibility does not apply – where sole parental responsibility order in favour of the wife – where cultural and religious beliefs have an impact on the child’s best interest – where relationship with the child is outweighed by the negative aspects and experiences which she feels – where father currently resides overseas – where father will communicate and spend time with child as agreed between the parents – where the father will travel to Australia to spend time with the child as agreed between the parents – where father sought to have the assistance of an interpreter – whether father has not shown any signs of difficulty comprehending the communications – where this is the first court event he has requested an interpreter – where father declined to cross-examine any witnesses. FAMILY LAW – CHILDREN – permanent resident of Australia – where mother seeks father’s consent to the child becoming a permanent resident – where it is in the best interests of the child to have the right to travel overseas and return to Australia. |
| Family Law Act 1975 (Cth) ss 4, 4AB(1), 60B, 60CA, 60CC, 61DA, 65DAC, 106A, Family Law Rules 2004 (Cth) r 22.11(3) Evidence Act 1995 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Ms Corla |
| RESPONDENT: | Mr Tebello |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Geysen |
| FILE NUMBER: | BRC | 3393 | of | 2013 |
| DATE DELIVERED: | 2 June 2016 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 3 March 2016; last written submissions received 8 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Mayes |
| SOLICITORS FOR THE APPLICANT: | Boulton Cleary & Kern |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Sharp |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Couper Geysen Family & Animal Law |
Orders
All previous parenting orders be forthwith discharged.
K, born … 2006, (“the child”) live with the mother.
The mother shall have sole parental responsibility for the child.
The father is to communicate and spend time with the child at all such times as is agreed between the parties and failing agreement the father to be able to send the child letters and gifts.
In the event the father travels to Australia, the child spend time with the father as agreed between the mother and father.
In the event the mother and child travel to Country X, the child spend time with the father as agreed between the mother and the father, with the father to sign all necessary consent and provide the necessary documents for the child to enter and leave Country X.
The parties are to do all acts and things and give all necessary consents to enable the father, at his cost, to obtain from the school the child attends, a copy of her school reports, information pertaining to her educational progress, school circulars and school photographs.
The parties keep the other informed of their contact telephone number, Skype address and residential address.
The mother and father are restrained from recording any conversations of the child with the other party by any means.
The father be restrained and an injunction issue restraining him from referring the child by any Christian name other than K.
The mother or her legal representative, deliver a completed version of the appropriate form or documentation from the Department of Immigration and Border Protection relating to the grant of Australian permanent residence for the child, to the father within seven days of the date of this Order.
The father execute the document forwarded to him giving his consent to the granting of the Australian visa for the child and email and post the completed form to the mother’s legal representative no later than 14 days from the date of this Order.
Should the father fail to sign any document necessary to facilitate an application for permanent residence for the child being made, and upon the mother’s solicitor filing an affidavit deposing to this failure and annexing a copy of any correspondence forwarded to the father in relation to the same, a Registrar of the Court is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign any such document in the father’s stead.
The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Corla & Tebello has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: BRC3393/2013
| Ms Corla |
Applicant
And
| Mr Tabello |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By her Further Amended Initiating Application filed 17 February 2016, Ms Corla (“the mother”) seeks orders that K, born in 2006 and hence presently nine years of age (“the child”), live with her and that she have sole parental responsibility in respect of her. Further, the orders which she seeks do not specifically provide for the child to spend time with Mr Tebello (“the father”) save that in the event the father travels to Australia, she anticipates that the child will “spend time with the father as agreed between the mother and the father.” There are similar orders proposed by her in the event that she and child travel to African Country X, which is where the father presently resides. The mother also contemplates that the father will communicate with the child as may be agreed between the parties, but failing agreement, that the father be able to send the child letters and gifts. She justifies these orders on the basis that the father presently poses an unacceptable risk of emotional harm to the child in consequence of the way he engages with, and seeks to dominate and control the child. I will discuss those alleged behaviours in greater detail in due course.
For his part, in his Response to Initiating Application filed 22 December 2015, the father proposed that the child live with the mother, but that the parties have equal shared parental responsibility for her. He then sought an intricate suite of orders providing for the child to spend holiday time with him both in Country X and Australia, and for a liberal communication regime as well. His highly detailed and prescriptive proposed orders also provided for a number of restraints on the mother, and a number of obligations on her to keep the father informed in relation to matters pertaining to the child from time to time. The father justifies those orders on the basis that he does not present any risk of harm to the child, and that it is important for the child to maintain a meaningful relationship with him because he is her best means of the child maintaining connection with her Shona culture.
The Independent Children's Lawyer strongly supported the orders proposed by the mother.
THE BACKGROUND TO AND TRIAL OF THE PROCEEDINGS
The parties have a considerable history of litigation between them, both in Country X and in Australia. These proceedings were commenced by the mother in 2013, although at that time she did not seek orders prohibiting the father from spending time with the child, but rather sought orders permitting the child to spend time and communicate with the father in Australia, or in Country X if the mother and child travelled there. The proceedings were filed in the Brisbane Registry of the Court, and proceeded there until transferred to the Townsville Registry of the Court on 16 November 2015 by virtue of an order of Hogan J. It appears as though there were some miscommunication between the Court and the father on that occasion, in consequence of which the father did not appear before her Honour on that day, whether by telephone (as was his practice), or in person.
The matter first came before me on 8 December 2015, on which occasion the father appeared by telephone from Country X. He argued that the orders of Hogan J should be stayed pending him filing an appeal therefrom. On that occasion I ordered that the matter be listed for trial in the next Townsville sittings, however, and notwithstanding the absence of an appeal and Family Law Rules r 22.11(3), I also made an order staying the orders of Hogan J until 4:00 pm on Monday 14 December 2015, to facilitate the father filing his proposed appeal and seeking a stay from her Honour. On 14 December 2015 the father did indeed file a Notice of Appeal seeking the discharge of the entirety of all of the orders of Hogan J, including therefore the transfer to Townsville. He also filed an application for a stay, which was determined by Hogan J on 21 December 2015 against the father, for reasons which her Honour delivered on that day. The effect of the refusal of the father’s stay meant that the listing of the matter for trial which I ordered on 8 December 2015 remained operative, and indeed the matter did so proceed. Pursuant to liberty to appear electronically which I gave the father on 8 December 2015, the father appeared at trial by telephone.
However by then, on 22 December 2015, the father had filed his Response to the mother’s Initiating Application. For the first time in any of the considerable court documents that he had filed, he indicated that a Shona interpreter was required by him. Shortly after the trial commenced, he pressed for that interpreter, on the grounds that he would be “more comfortable” with such assistance.
In all of the litigious history of these parties, this was the first court event at which the father had ever sought to have the assistance of an interpreter. An interpreter had not been arranged for the trial. That meant that if an interpreter was in fact needed, the trial, which was then listed for two days, could not have proceeded. Indeed it was most unlikely, in the event that the trial was conducted with the aid of an interpreter, that it would have taken as short a time as two days, and would have likely required considerably longer.
In the course of considering whether or not to adjourn the trial pending an interpreter being made available, I reviewed the transcript of proceedings before Hogan J on 21 December 2015, and listened to some aspects of the audio recordings of the proceedings on that day, and also the proceedings before me on 8 December 2015. Whilst on occasions the telephone link appeared to be difficult between Hogan J and Country X, there was no indication whatsoever in either of those recordings that the father had any difficulty comprehending the content of communications, or had any difficulty whatsoever articulating his arguments. This is quite consistent with the father’s simply excellent written materials which he has filed from time to time. He demonstrates none of the difficulties, either in conceptualising issues or in articulating detail, which often besets self-represented litigants in this court, even those who have no language issues. Ultimately I was not persuaded that the father in fact required an interpreter, and hence the trial proceeded.
However whilst up until the point when I made that determination, the father had been, as on previous occasions, apparently quite able to understand the proceedings and communicate in the course of them, thereafter, with the exception of about five minutes towards the middle of the day, he did not continue to display the language skills which he hitherto had done. Indeed in that respect the father appeared to suffer a quite startling transformation. He would often be unresponsive to questions, and would assert that, when he did respond, he was only doing so because he heard someone mention his name. He regularly asserted that he did not understand anything else other than his name. On occasions he began to speak in Shona, or at least what I assume was Shona. None of this had ever occurred in the earlier proceedings.
Moreover, consistent with his new found asserted language difficulties, he declined to cross-examine any witnesses, asserting that the questions which he had for them were all written in Shona, and he was unable to ask the questions in English.
Perhaps the high point of the father’s asserted difficulty in comprehending the English language was when he refused to answer my questions directed towards very basic matters, such as where he was born.
I attempted to have the father give an affirmation in order that he could be cross-examined. He did not so much decline to do so, but rather was not prepared to even acknowledge the request which was being made of him. An attempt was then made, notwithstanding that he was not affirmed or sworn, to have him cross-examined. He did not respond to any questions put to him by counsel. Inevitably this means that the weight I ought give to his untested affidavits is greatly reduced.
The net effect of all of that is that what was anticipated to be a two day trial was therefore able to be concluded within one day, save that I ordered that the father make written submissions in English, he asserting that his submissions were all in Shona, which he could not translate into English.
I am quite satisfied that the father was not being truthful in his assertion that he could not adequately participate in the proceedings in English. He had done so on previous occasions without complaint or any apparent difficulty. Moreover, although in the most recent Family Report interviews he had the assistance of a Shona interpreter, somewhat interestingly, on 4 February 2016 he wrote a long email in impeccable English to the Family Report writer. In that email[1] he said:
[1]Exhibit 4.
Now when it comes to the interpreter, I felt that she did not translate some Shona words into English but simply gave me the English words without translating them. The examples that stand out are references to months and dates.
I thought it would have been rude for me to correct the translator whenever she made what I considered to be a material error in translation.
What I found to be most frustrating during the translations was that you would ask a question and I would respond and before I had finished responding, she would ask me to pause while she translated back to you, which was not necessarily the problem, but once she had done the translation, you would immediately move to the next topic or ask another question before I had completed whatever else I had to say. I can only presume that you had no way of knowing whether or not I had completed whatever I was saying and the translator also did not inform you that she was only translating a part of what I was saying at that point in time.
As part of the incorrect translations that I remember, I did not say that my child could be using the name [“Corla”]. I however hope you understood what I wanted to convey was that because it is difficult for most Caucasians to pronounce my surname, it does not that mean that the child needs to change her surname even though she may not like or if her friends at school find it difficult to pronounce.
One other thing which I think was not interpreted correctly was when the interpreter said that I said “one good turn deserves another.” What I said or meant to convey was that a child needs to learn responsibility and values by reciprocating actions which her parents transmit to her otherwise she will grow up with the wrong conception of life or she will grow up misguided which would not be good for her in the future…
The translator said that the child told me scary things. I did not say that. What she was supposed to translate was that I said “the child told me things which disturb me.”
Your question “tell me about your relationship with [the child]… What is she like?” Was interpreted as “tell me what [the child] likes” which is not one of the same thing.
You may also remember that the interpreter referred to me on a number of occasions as “she” instead of “he”.
The interpreter said “I am sure that she could be using the last name [“Corla.]” I did not say that at all.
…
I accept that there is no perfect translation from one language to another so I will not berate the translator although her use of some English words when translating what you had said to me into Shona could have been based on an assumption that I knew the meaning of the English words which she used.
It seems plain to me that the father had no need of an interpreter before Ms M, although I accept that he may have been more comfortable communicating primarily in Shona.
The difficulty which the father’s position placed him in however (leaving aside about five minutes where he seemed to forget the character that he was playing, and resumed ordinary interaction with me as he had done in the past) was that the father was not willing to discard the guise he had assumed and to properly conduct his case in English. In that sense he had painted himself into a corner.
I shall consider the impact of that, and other issues associated with the father’s behaviour before me, in due course where they are relevant to issues in the case.
At the conclusion of the trial, I gave the father liberty to make submissions in English. On 25 March 2016 he filed 1,102 paragraphs of impeccably crafted questions and comments, presumably the questions being those which he ought to have asked of the relevant witnesses at trial. The father made no application to re-open the trial to ask the questions in his submissions. His submissions are to be found particularly at paragraphs 104-112, 116, 126, 176-190, 210, 360-363, 446-447, 493-495, 503-5-5, 609-613, 620-622, 705, 826, 870, 917-917, 932-963 and 1082-1102 of his 25 March document. I have considered those submissions, and accept the observations made in relation to them by the helpful written submissions filed on 8 April 2016 by counsel for the Independent Children's Lawyer.
BACKGROUND FACTS
The father
The father was born in African Country Y in 1970, and hence is presently 45 years of age. It appears that he studied, perhaps by correspondence, from a university and subsequently became a software developer by occupation.
The father is of Shona descent and culture, and so identifies. Apparently he comes from a very large family, most of whom, I infer, remain in Country Y.
The mother
The mother was born in Country Y in 1976, and hence is presently 40 years of age. The father asserts that she comes from a politically well-connected family in Country Y. Whilst the material before me discloses little of the mother’s early life, it is apparent that at some stage prior to meeting the father she qualified as a professional, and was employed in that capacity in Country Y.
The relationship
The parties met through mutual friends when they were all members of a church youth group in, it seems, about 2003. At that time the father was aged about 32 and the mother 27. The mother told Ms B, who prepared the first Family Report dated 25 June 2014, that she found the father “to be possessive and controlling, hence she broke the relationship off.” The mother then formed a subsequent relationship with another man, but when that ended, the father was “right back again.”
There appear to have been two weddings for the parties, the first being in 2003 pursuant to customary procedures, and the second in 2004 according to Christian rights and comprising a common law marriage. However from the outset it appears as though things did not go smoothly. There was an issue with the bride price to be paid to the maternal grandparents in respect of the mother. The father says:[2]
.. After our marriage, her parents demanded that I give them a cow as a fine for having de-flowered their daughter. I refused because I knew that I was not the one who had broken her virginity. This added to the contention between her family and mine.
[2]Paragraph 12 affidavit filed 25 February 2014.
Shortly after that, another issue arose in relation to the father having failed to disclose to the mother that he had significant debts at the time of the marriage. The mother appears to have been resentful of the father being of lesser financial circumstance than she had believed; on the other hand the father says:[3]
There was no cultural precedent that compelled me or required me to disclose any debts that I had before our marriage.
[3]Paragraph 15 affidavit filed 25 February 2014.
Subsequently issues developed in which the father perceived that the mother was being tardy in performing her cultural obligations of meeting his family. Conflict and tension between the parties became commonplace. Both the mother and the father perceived that the other thought poorly of, and did not respect, each other’s family.
Not long into the marriage the father lost his then employment, but did not immediately tell the mother. At about that time, the mother became dissatisfied with her employment in Country Y and proposed to the father that she move to Country X to try and improve her prospects. The mother was immediately offered an employment position in Country X and approximately four months after the marriage, she indeed moved to Country X to live and follow her career. Although initially the father may have indicated that he intended to follow, in fact he remained in Country Y where he was establishing a business.
The mother returned to Country Y from Country X on holidays, but unfortunately that time with the father was marred by what the mother says was some controlling behaviour, during which he took her mobile phone, locked her in the house, and disconnected the landline to the house. Apparently this was all in the context of the father threatening the mother that he could stop her going back to Country X. The mother told Ms B[4] that “she felt violated, striped of respect and was very scared for the first time in her life. This incident was the beginning of the end for her.” Nonetheless the mother did return to Country X, and then in November 2005 the father also moved there. However there was tension, because members of the mother’s family were living in the mother’s unit, which the father appeared to regard as solely his. Conflict ensued. Not long after this, the mother discovered that she was pregnant.
[4]Paragraph 22 first Family Report.
The mother told Ms B that during this time the father was “possessive, restricting of who she talked to and was critical of her.” She further said that the father would be “at and at me all night trying to get me to see his point of view.” She received some medical advice that suggested that this conflict was adversely affecting her pregnancy, and in consequence of that, in February 2006 she decided to separate from the father. A subsequent attempt at mediated reconciliation failed, according to the mother because the father was “very bitter and unforgiving.”
Post separation
Notwithstanding the parties were separated, the father had some involvement in the pregnancy which led to the birth of the child in 2006. However the mother told Ms B that the father did not help financially in relation to the costs of the child, and further, the mother was suspicious of the father using the child “as a means of getting back into her life and controlling her.”
In 2008 there was apparently some civil unrest in Country X directed towards foreign workers. The mother began to investigate the opportunities for employment elsewhere, including even returning to Country Y. She put her curriculum vitae on an internet employment site and almost immediately received an email from a potential employer in South East Queensland. The mother flew to Melbourne, attended interviews and was offered a position there.
Upon her return to Country X, she discussed the offer of employment with the father and explained the advantages of a move to Australia. The father signed a consent order agreeing to the child moving to Australia, although in his material he asserts that, firstly, his agreement was only for that move to be for four years, and secondly, that he had no knowledge at the time that the mother was intending to divorce him. It is unnecessary to determine either of those issues for the purposes of this case.
Shortly thereafter, the mother moved to South East Queensland. The father remained living in Country X, and, but for one visit to Australia which I will detail later in these reasons, has remained living there. He has now obtained permanent residency there.
Initially it does not appear as though the father had any communication with the child for about seven months after the mother moved, but thereafter some telephone communication was embarked upon. The mother told Ms B that “in retrospect... it was not great that she cut off the communication between [the child] and her father.”
The mother commenced these proceedings in 2013, and in 2014 a Family Report was undertaken. At that time, the father was asserting that the child should return to Country X and live with him, and spend time with the mother. That, of course, was ultimately not the father’s position. Whilst Ms B did not express any view in relation to whether the child should relocate to Country X or not, she did recommend that the child commence communication with her father, and that after about three months of regular communication, the father travel to Australia to spend time with her during the day only.
Those recommendations were substantially the basis for orders made on 1 August 2014 by Acting Principal Registrar Spink, and pursuant to those orders, telephone and Skype communication commenced and the father travelled to Australia to spend time with the child in October 2014.
Since then, the child has continued to communicate regularly with the father via phone and Skype. However that communication has not progressed well. I will discuss the reasons for that in due course, but there are at least four significant problems. The first is that the father, for some time now, has insisted upon referring to the child not as “K”, but as “Z”. Z is one of her middle names, and was apparently the name selected by the father. The father claims that since it is the name that he gave to her, and since children do not get to choose their own names, he is perfectly entitled to insist upon calling her Z. However the child has taken great exception to this. She refuses to respond when she is called by that name. The father refuses to communicate with the child unless and until she responds to that name. For instance, the father, when telephoning the child, will ask to speak with Z. Unless the child acknowledges that she is Z, the father will then hang up. He will then ring back and repeat the process. He may do so many times before terminating his attempts to communicate with the child.
The second difficulty is that on some occasions the father insists upon communicating with the child only in Shona. He justifies this on the basis that it is the child’s cultural language, and that it is part of his responsibility to teach her that language and her culture. However the child is not particularly fluent in Shona, and hence cannot understand much of what the father says to her.
The third difficulty is that the father appears to have formed the view that the child, whilst a black African, is growing up “white”. The child says, and I accept notwithstanding the father’s denial, that on at least one occasion the father has called her a “coconut.” This is apparently a highly culturally disrespectful term, denoting that someone whilst black on the outside, is white on the inside. The child has found that description of her as very upsetting.
Fourthly, on occasions whilst undertaking Skype calls, the father has taken to not showing his face on the video. This has caused the child to reciprocate, and to hide herself from the father.
That was the state of play when Ms M, the second Family Report writer, interviewed the child in January 2016. The child told her that the father was “nasty and horrible” and said that she was “devastated” when she learned that she was to have a whole week of visits with him in October 2014. She continued “He is mean, horrible and nasty. I don’t call him Father. I don’t call him anything… I haven’t told my friends about him because I don’t feel good about him.”
Ms M was strongly of the view that the communication regime which prevailed, even at the time of trial before me, was doing more damage than good for the child, and stood the risk of effecting serious emotional harm to her.
The child
At the time of trial the child was approximately nine and a half years old. She was in year four at C School, and appears to enjoy her school. She is particularly interested in art, maths and science, and loves sport, including gymnastics and swimming. She has already expressed a desire to go to university.
Ms M opined that the child was very closely connected to her mother, and would prefer to spend time with her mother rather than doing anything else. The child told Ms M “mum is quiet, she doesn’t talk as much as I do. Mum and I get along very well. I am close to my mum. We don’t have any arguments. There is no better mum in the world. Her heart is kind, gentle and loving.”
THE ISSUES
With the assistance of the parties, I identified the following issues as being those which will substantially inform the outcome of this case.
1.What is the nature of the relationship between the child and the mother.
2.What is the nature of the relationship between the child and the father.
3.Would the child benefit from a meaningful relationship with the mother, and if so how might it best be facilitated.
4.Would the child benefit from a meaningful relationship with the father, and if so how might it best be facilitated.
5.Would the mother facilitate a meaningful relationship between the father and the child.
6.What are the risks and benefits of the child spending holiday time with the father whether in Country X or Australia.
7.What are the risks and benefits of the child having regular Skype and telephone communication with the father.
8.Is it reasonably practicable for the child to spend holiday time with the father, whether in Country X or Australia.
9.Could the parties’ communication support equal shared parental responsibility.
Once I have discussed relevant statutory provisions and legal principles, I will address those issues in advance of a general traverse of any residual s 60CC considerations, and then consider the appropriate parenting orders in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[5]
[5] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is also potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[6]
[6] See K v R (1997) 22 FamLR 592 and Re W(sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[7]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[7] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
“No contact” orders
Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. They are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
Moreover it is incumbent upon the court to clearly explain its reasons for any conclusion that safeguarding conditions cannot sufficiently ameliorate the risk posed by the parent: see Blinko & Blinko [2015] FamCAFC 146 at [30].
NATURE OF RELATIONSHIP BETWEEN CHILD AND MOTHER
Ms M’s unchallenged evidence (accepting that it was probably only unchallenged because the father refused to participate in the proceedings in English) was that the child has a very strong attachment with her mother, and that she feels very safe in her care and company. She said that the mother was the most important person in the child’s life, and that her number one thing to do, was to be with her mother, and spend time with her.
I accept that evidence.
NATURE OF RELATIONSHIP BETWEEN CHILD AND FATHER
Ms M’s evidence was that the child had never had an attachment relationship with the father. Further, while she thought that the attempted graduated reunification between the father and the child was a good idea, and if followed reasonably, would likely have worked to re-establish a relationship, in fact the attempt failed completely. She said that since the October 2014 face to face visits, the communication between the father and the child is more negative than positive. She said that the child found face to face visits with the father stressful because the father was a virtual stranger, and whilst that could have been repaired by appropriate follow-up telephone calls, the calls which have occurred have included inappropriate topics, have largely been attempted to be conducted in Shona, with the father insisting upon calling the child by the name Z, calling her a coconut, and otherwise engaging in some form of power struggle with the child, which has wholly sabotaged any good that has come out of the attempted reunification. She said that the child sees the father in those communications as being punitive and critical of her, and that there is no opportunity in them for anything positive to occur. The father does not respond to the child’s wishes in those communications.
Ms M said that there are no positive aspects to the relationship between the father and the child, and unfortunately it is not as though the relationship is even a neutral one. Particularly the child perceives the father as nasty and horrible and more mean than nice. She was tense, anxious and teary when describing him to her, and is emotionally hurt by the relationship with the father, and more particularly his communication to her. I accept that evidence.
Unfortunately the father’s perception of the relationship appears to be different. For instance he seemed to think that the face to face time in October 2014 was successful. He annexed to his affidavit photographs of what appears to be a happy child engaging in activities. However the difficulty for the father is that he did not present himself for cross-examination – or at least refused to answer any questions in English – and his perception clearly does not align with the child’s reporting to Ms M.
I am satisfied that the child has a poor relationship with the father, and associates him as mean, nasty, critical, and punitive and that he is a virtual stranger to her. Her attitude to her father is typified by the fact that she refuses to call him father or dad, but simply refers to him as “him.”
BENEFIT OF MEANINFUL RELATIONSHIP WITH MOTHER
I have already referred to Ms M’s evidence that the child’s primary attachment relationship is with the mother, and that she regards her mother as her best friend, with whom she wants to primarily spend her time. Ms M’s evidence was that the mother can nurture the child in all domains, including social, cultural and religious. Her evidence was that the child would definitely benefit from a meaningful relationship with the mother, and that would be best facilitated by living with her, and having the mother actively involved in all areas of the child’s life. I accept that evidence.
BENEFIT OF MEANINGFUL RELATIONSHIP WITH FATHER
Ms M’s evidence was that she would always say that a child stands to benefit from a meaningful relationship with both parents, however in this instance, what has occurred since October 2014 by virtue of the father’s actions, has caused emotional harm to the child, and at least for the moment there is a negative relationship between them. Her evidence was that the relationship he imposes upon the child is neither meaningful nor beneficial to her.
Plainly therefore, the difficulty is that the father has chosen to use the opportunity to develop a meaningful relationship with the child to in fact behave in a way which is emotionally damaging to her. Therefore whilst the answer to this question is that the child would likely benefit from such a relationship, the practical reality is that the father apparently has set upon a course of interaction with the child – whether advertently or otherwise is not to the point – which sees him conflict with her, and causes her emotional harm.
In this context, it is telling to consider the power struggle which the father apparently wanted to engage in with the court in relation to the issue of a Shona interpreter. I have little doubt that the father saw the opportunity of an adjournment in the event that an interpreter was not afforded to him, and I am highly suspicious that the benefit of an adjournment, from his perspective, was that it would give him a further opportunity to continue to engage in litigation with the mother.
The father’s – at times farcical – pretence that he could not understand what was being said to him – even a question as to where he was born – is indicative of a man who is more focussed upon a strategy and his own needs, than upon taking the opportunity to engage in a meaningful way in relation to issues involving his own relationship with the child. There is every reason to think that the father’s interaction with the child would be as petty as it was with me, and it is consistent with the child’s and the mother’s reports of the conversations in which the father steadfastly refuses to communicate with the child unless she acknowledges that she is Z.
WOULD MOTHER FACILITATE A MEANINGFUL RELATIONSHIP BETWEEN FATHER AND CHILD
There is little doubt that when the mother initially left Africa and moved to Australia, she did not actively seek to foster a relationship between the father and the child. She acknowledged as much to Ms B, and expressed her regret of it. However since then the mother has sought to re-engage the father in the child’s life, for instance by facilitating the telephone and Skype communication regime, both before and after the face to face time in November 2014. Moreover, Ms M’s evidence was that the child had told her that she tells her mother, as a result of speaking with her father on the telephone, that “I want to punch him” but told Ms M that her mother says “I must be nice and respectful to him.”
Further Ms M said that from her assessment of the mother, she appeared to have respect for the father and his family, and felt it very important for the child to know her father and his family and her Shona culture.
These may well have been matters which the father wished to challenge Ms M in relation to, but the opportunity to do so was not availed of by him.
I accept her evidence. I am satisfied that the mother would facilitate a meaningful relationship between the father and the child, however is mindful of the father’s attempts to control the child, and the risk of ensuing emotional harm. She is nonetheless cognisant of the benefits to the child of a meaningful relationship.
RISKS AND BENEFITS OF CHILD SPENDING TIME WITH THE FATHER
Turning firstly to risks, Ms M’s evidence was that, at the moment, the child is not able to emotionally cope with spending time with the father, whether in Australia or elsewhere. Her evidence was that on the worst case scenario, for instance if the child was required to spend six weeks of time with the father over Christmas, she would experience it as being forced to spend time with a stranger who frightens her. She said that that would be emotionally harmful, even if it were to be for one day. She said that if it were to last six weeks, it would cause inconsolable distress to be suffered by the child, would profoundly impact upon her trust of the mother, and very likely lead to significant mental health problems, and even possibly long term personality issues. I accept that evidence.
As to the benefits, Ms M indicated that the Shona culture was an important aspect to the child’s forming identity. However she said that the mother is instilling knowledge of that culture into the child, and that it is not the case that the father presents the only conduit to that experience. That said, Ms M did concede that the father has a large family, and that his family is different from that of the mother, and hence it would be enriching for her to learn about other aspects of her Shona culture from that family. Ms M continued that, if at a future date the relationship between the father and the child could be adequately repaired, it would benefit the child to spend time with him when forming her identity, as it would give her familiarity with her knowledge of her biological origins. Again I accept that evidence.
RISKS AND BENEFITS OF SKYPE AND TELEPHONE COMMUNICATION
Turning firstly to the risks associated with ongoing communication, Ms M predicted, given the child’s challenges, and the distress that she experiences associated with that communication, that if it were to continue, the child is likely to, at least in the short term, simply refuse to communicate with the father. She is likely to become defiant and turn off the Skype or hang up the telephone. She is also likely to resent her mother forcing her to maintain communication with her father, and likely to then become defiant towards her mother. Ms M opined that if the relationship between the mother and the child were to become impaired, it may cause the child to become depressed and anxious.
As to the benefits of regular Skype and telephone communication, Ms M opined that there would be enormous benefits if the relationship could be repaired. She said that Skype had much to offer because it is more enriching to see the other person, rather than simply hearing them. The parties can see each other’s facial expressions, and share smiles and laughter, which she said can assist in forming and maintaining an emotional bond.
On the other hand her evidence was that if the father does not change his means of communicating and interacting with the child, she could perceive no benefit in Skype or telephone communication continuing. It was only a negative.
I accept her evidence in these respects.
REASONABLE PRACTICABILITY OF HOLIDAY TIME WITH FATHER
At one stage this loomed as a significant issue, in that the mother had conceded earlier in the litigation that the child should indeed spend face to face time with the father. That would necessarily have occasioned some consideration as to the inevitable costs of long distance international travel, and the costs, in the event that the father were to travel to Australia, of him maintaining accommodation for such periods of time as he was spending with the child. The father proposed in his orders that these costs should largely, but not entirely, be borne by the mother, seemingly because it was she who had left Africa.
I accept that there would be likely substantial costs involved in the child either travelling to, and staying in Country X, or the father travelling to and staying in Australia. However it appears as though both the mother and father are in employment, and have, in the mother’s case at least, good career prospects, and a reasonable income. It was not suggested that the parties would not be able to, by some means, fund the travel.
I am therefore satisfied that in the event that the child were to travel to Country X to spend time with the father, or the father travel to Australia to spend time with the child here, it would be reasonably practicable.
COULD PARTIES COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY
The parties have not had a civil communication in many years. The mother perceives that the father attempts to control and coerce her. There is some support for that in the father’s own material, in that his evidence is that he believes that as the child’s father, he should have the exclusive right to make decisions in relation to all aspects of her life. He says that this is a part of the Shona culture. As such, he is unlikely to attribute any weight to views which the mother may express from time to time as to what may be in the child’s best interests, because he operates from the position of male privilege.
There is a good basis for suspecting that the father does indeed engage with the mother in ways which, whether consciously or not, seek to control and coerce her to his point of view.
I am not satisfied that the parties’ communication is of a kind that could support joint decision making in relationship to significant matters involving the child.
SECTION 60CC CONSIDERATIONS
It will be appreciated that in discussing the issues I have already traversed both of the primary considerations, and a number of the additional considerations listed in s 60CC. It is unnecessary to repeat those observations again. However by reference to those additional considerations which I have not already addressed, I make the following further observations.
The child has expressed strong views not to continue to have a relationship with the father. She is nearly ten years of age. Ms M said she was a mature, intelligent and insightful girl. As such her wishes do deserve some, but not determinative, weight.
Whilst it is true that after the child moved to Australia, the father did not seek to participate in decision making about her, or to spend time or communicate with her, that is probably as much the responsibility of the mother as the father.
It does not appear as though the father has ever contributed to the financial costs of raising the child.
I am satisfied that if the child were to be required to spend time with the father, that change of circumstance would dramatically affect her in an adverse way as discussed.
I have considerable doubt as to the father’s capacity to provide for the emotional needs of the child, as is evidenced by his somewhat odd conduct in communicating with her by Skype and telephone.
The father’s Shona culture is obviously important to him, and ordinarily it would be of considerable benefit to the child to not only have her mother teaching her in relation to that culture, but also her father.
I am satisfied that the father does use coercive and controlling behaviours, and as such his behaviour satisfies the definition of family violence in s 4AB of the Family Law Act.
PARENTAL RESPONSIBILITY
There are reasonable grounds to believe that there has been family violence here, comprising controlling behaviour on the part of the father. The presumption of equal shared parental responsibility therefore does not apply.
As to whether it would nonetheless be in the child’s best interests for an order for equal shared parental responsibility, it is noteworthy that the father concedes that the child should live with the mother. I am satisfied that the parties do not have sufficiently good communication to enable joint decision making in relation to significant issues. Further, whilst the father has spent a limited time in Australia, it could not be said that he has any real familiarity with the Australian systems of education, health care or the religious facilities available here, or that he has any general familiarity or its society or culture generally. In those circumstances, precisely what the father could bring to the table to contribute in relation to joint decision making in relation to the child is difficult to see. True it is he would have the benefits of a more day to day association with Shona culture than perhaps the mother does, but the chances of the child obtaining benefit from that, given the inability of the parents to communicate, is dubious at best.
I am satisfied that it is in the child’s best interests that the mother have sole parental responsibility for her.
LIVING ARRANGEMENTS
The father does not seek orders that the child live with him, and concedes that the child should live with the mother. I am satisfied indeed that such an order would be in the child’s best interests. It would be positively harmful for the child to live with the father.
TIME AND COMMUNICATION WITH FATHER
It is most unfortunate that the effort at re-establishing, or perhaps more correctly, creating, a relationship between the child and the father, has failed. However it plainly has failed. The reason why it has failed is because the father refuses to engage with the child in a way which is focussed upon her needs, rather than his. His obsession with calling her Z rather than K is at best absurd, and at worst perverse. It is plainly an attempt by him to coerce her to his will in a way which she objects to, and which the father knows she objects to.
The only reason which the father advances for commencing to call her by a different name is that it was the name that he gave her. That is an inadequate justification for his odd conduct.
In his material the father did not indicate that he intended to desist from this habit. Further, even though Hogan J has ordered that the father not call the child Z, he has continued to do so in defiance of that order. There is no reason to think that he will stop. He is engaging in a war of wills with the child, does not intend to give in, and apparently is intent of victory.
I have little doubt that the father does indeed believe that the child is not growing up as he believes a black African should. He has used the words “snobbish coconut” in correspondence with the mother, and I have little doubt that not only has he used that word directly to the child, but that he genuinely believes that to be the case.
Ms M’s evidence was that the child presently has the best of both a typical Australian schoolgirl’s life, and Shona culture. She says that the child is proud of her African heritage and culture, and values it. She says that the child can move seamlessly between the life of a typical Queensland schoolgirl on the one hand, and a person of African descent on the other. Moreover, the child is happy with her experience of both of those aspects to her life.
It appears as though the father is likely to use opportunities of interacting with the child to upset that balance. Plainly he believes that the balance is presently wrong. No doubt it is this which largely motivates him to, on occasions, speak exclusively in Shona with the child, much to her distress and confusion.
It is to be regretted that the benefits which the father could otherwise bring to the relationship with the child are wholly outweighed by the negative aspects and experiences which she feels. There can be no doubt that she resents having anything to do with her father, who she perceives as mean and nasty.
The reality is that unless and until the father can demonstrate some greater child focus in his communication with the child, then it is not in her best interests to perpetuate the anger, resentment, and emotional distress that she experiences when being forced to interact with him against her will. I have little doubt that she indeed sees her father as punitive and critical, and she experiences interacting with him as a power struggle. That cannot be a good experience for a child in relation to her father, and I accept the evidence that the relationship is only going to sour further if the communication is forced to continue.
It is up to the father to demonstrate some change sufficient to have the balance of benefit verses risk, weigh in favour of benefit. Unless and until he does, then I asses the risk of serious emotional harm being suffered by the child from being required to spend time or communicate with him as presently unacceptable. That is because the prospect of her suffering such harm is high, and the magnitude of the harm is likely to be considerable, particularly in the short to medium term.
Sadly, the reality is that the father may never change. He expresses no desire to change, which one would think would be an essential precondition for it. Whilst it should not be the case that the father is absolutely prohibited from spending time or communicating with the child, there is presently no basis upon which an order facilitating time or communication can safely be made. Supervision of face to face time will not change the father’s behaviour, and is probably impractical in any event. Supervision of communication is also futile; the father needs to change in order for any communication to have any benefit for the child.
Therefore the only solution – and it is far from perfect – is to have the mother given the power to determine what time the father should spend with the child, and in what circumstances and when he should communicate with her. Given that I am satisfied that the mother sees value in the child having a relationship with the father, she can be trusted with that right. The ball is squarely in the father’s court as to whether he wishes to change from engaging in a power struggle with the child, to becoming a father.
OTHER ORDERS
The mother seeks orders requiring the father to consent to the child becoming a permanent resident of Australia, and permitting the child to obtain an Australian visa. Without those it is said that the child presently has no right to re-enter Australia if she leaves. I am satisfied that it is in the child’s best interests that she should have the right to travel overseas and return to Australia at the conclusion of any such travel. There will therefore be orders sought by the mother.
The father sought highly prescriptive, and interestingly, non-mutual, orders requiring the mother to provide information to him and restraining the mother from engaging in certain conduct.
If there was some realistic prospect that the father was going to play a meaningful role in this child’s life during her childhood, then there may be some benefit in considering those orders in detail. However the father appears to have no interest in what might be described as a usual father/daughter relationship, but rather intends to subject the child to his ongoing coercive and controlling behaviour. I am not satisfied that any of the orders which the father seeks, either by way of restraint on the mother, or by way of positive obligation on her, are in the child’s best interests, and decline to make them.
INTERIM ORDERS
At the conclusion of the trial before me I was asked to make interim orders suspending the communication regime between the child and the father. I made those orders for reasons to be published. The reasons for making those orders are identical to those which I have expressed earlier in these reasons as justifying there being no orders for time and communication between the father absent agreement by the mother.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 2 June 2016.
Associate:
Date: 2 June 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Jurisdiction
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Remedies
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Standing
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