Daher and Wu & Anor

[2021] FCWA 149

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: DAHER and WU & ANOR [2021] FCWA 149

CORAM: TYSON J

HEARD: 9 AUGUST 2021

DELIVERED : 13 AUGUST 2021

FILE NO/S: PTW 9548 of 2018

BETWEEN: MR DAHER

Applicant

AND

MS WU

First Respondent

AND

MS HADID

Second Respondent

Catchwords:

FAMILY LAW – Child-related proceedings – Interim parenting arrangements – Where there are serious allegations of family violence – Where there is one child, who is 2 years old – Where the parents separated when the child was 8 weeks old and the child has not spent any time with the father or paternal family since – Where the father is incarcerated and will remain in prison until 2028 – Where the mother remains living in an undisclosed location and is fearful of the father, and the paternal family, learning of her whereabouts – Where the father and paternal grandmother seek on a final basis, for the child to live with the grandmother until such time as the father is released from custody – Where the paternal grandmother seeks interim orders to spend supervised time with the child – Where the mother opposes the order – Where the father supports the order – Where the child has no relationship with the paternal family – Where there is highly conflictual evidence as to risks – Where the mother alleges the paternal grandmother was witness to the father’s violence towards her, which she denies – Where the paternal grandmother has attempted to contact the mother by attending at a refuge, in circumstances that are in dispute – Where the mother is protected by a VRO from the father – Where the father has been convicted of breach of the VRO – Where any order for contact, including supervised contact, risks the mother’s capacity to parent – Application declined – Case turns on its own fact

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
First Respondent	:	Ms Joss
Second Respondent	:	Mr Spashett
Independent Children's Lawyer	:	Mr Rice

Solicitors:

Applicant	:	Self-Represented Litigant
First Respondent	:	Joss Legal
Second Respondent	:	Platinum Legal
Independent Children's Lawyer	:	Griffiths Rice & Co

Case(s) referred to in decision(s):

McCall & Clark (2009) FLC 93-405

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daher and Wu & Anor has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

TYSON J:

1 These proceedings concern [Child A] born [in] 2018, who will shortly be three years old. Child A lives with her mother, [Ms Wu], at an undisclosed location. She has not had any contact with her father, [Mr Daher], since she was around eight weeks old, when her parents separated. In 2019, the father was charged with several criminal offences, and remanded in custody. The father has since been convicted of unlawful assault occasioning death, as well as drug, ammunition, and firearm offences. He is not eligible for parole until 2028.

2 The paternal grandmother, [Ms Hadid], is the Second Respondent. The paternal grandmother seeks interim orders to spend supervised time with Child A, which is supported by the father, and opposed by the mother. The parties agreed, and I made orders by consent, for the mother to provide the paternal grandmother, with photographs of Child A.

3 Mr Rice has only recently been appointed as the Independent Children’s Lawyer for Child A. At the time of the interim hearing, he had not received or read the court file. The ICL made some helpful submissions but was not in a position to make any clear recommendations at this time.

WHAT ARE THE ORDERS SOUGHT?

4 The paternal grandmother seeks that she and the paternal grandfather, spend supervised time with Child A, each week for a minimum of two hours, at her cost, with either [Supervision Service A] or [Supervision Service B]. She seeks mutual injunctions and orders to program the proceedings to trial. The mother opposes any orders for the paternal family to have contact with Child A.

WHAT IS THE EVIDENCE RELIED ON?

5 The mother relies on her affidavits filed 29 July 2021, 4 August 2020, together with select paragraphs of previous affidavits filed by her[1] and the paternal grandmother.[2] The paternal grandmother relies on her affidavit and the affidavit of [the paternal grandfather] both filed 16 June 2021.

[1] Mother’s affidavit filed 20 July 2020 and 9 September 2020.

[2] The paternal grandmother’s affidavit filed 4 September 2020.

6 Also in evidence, are two Case Assessment Conference Memorandums, and information obtained from the Department of Communities. I have read and carefully considered the evidence.

WHAT IS THE LAW?

7 In turning briefly to the law, these proceedings are determined under the provisions of the Family Law Act 1975 (Cth) (“the Act”) because the parents were married.

8 I propose to deliver reasons in short form only.[3] It is not necessary to set out the relevant legal principles, other than to note four matters.

[3] As permitted by s 69ZL(1) of the Act.

9 Firstly, in determining what parenting orders are to be made, the best interests of Child A are the paramount consideration. The Court is required to consider the nature of Child A’s relationship with each parent, and any other person, including any grandparent or relative. There is no presumption that a particular relationship will be “meaningful” nor that it will be to the benefit of the child.[4]

[4] McCall & Clark (2009) FLC 93-405.

10 Secondly, the legislation sets out various primary and additional considerations to be taken into account in determining what is in a child’s best interests.

11 Thirdly, the issues, as joined by the parties, will determine which of those considerations are relevant to the determination of the particular dispute and considerations which are not relevant to that determination need not be expressly discussed.

12 Fourthly, the circumspection with which findings on an interim hearing can be made is well established. Nevertheless, in interim proceedings the Court is frequently required to weigh the probabilities of the competing claims and the likely impact on the child in the event that a controversial assertion was acted upon or rejected. Evidence may not simply be disregarded merely because facts are in dispute, leaving the interim determination to be made solely by reference to the agreed facts.

13 Given the parameters of the narrow dispute, many of the s 60CC factors are of little or no relevance to the issues for determination. It is not necessary, therefore, to traverse them in detail in these Reasons. It is sufficient to note that I have turned my mind to each of the considerations listed in the section and will address them to the extent they are relevant.

SHORT BACKGROUND

14 The father was born [in] 1982 in [Country A]. His family left [Country B] and later migrated to Australia in around 1991. He is 39 years of age and remains incarcerated.

15 The mother was born [in] 1987 in [Country C]. Since 2001 she lived in [Country D]. The mother came to Australia on a student visa. She is 34 years of age and is a full-time parent. She resides in a refuge, at an undisclosed location.

16 The paternal grandmother was born [in] 1957 in Country A. She is 64 years of age and lives in [Suburb A], with her husband, the paternal grandfather, who is 64 years old. The paternal grandfather works [in maintenance], while the paternal grandmother [works in education]. The paternal grandparents have four children, the eldest of which is the father.

17 The father was previously in a relationship with [Ms Zhao]. They have a son [Child B], born [in] 2011. Child B lives with his mother and spends time with the paternal grandparents. Ms Zhao was previously protected by a Violence Restraining Order, from the father.

18 The mother and father met in 2015, in Australia. [In] 2018, they married and [in] 2018, Child A was born.

19 [In] November 2018, the mother left the father and has since lived in a refuge. [In late] November 2018, the police issued an order restraining the father from contacting the mother for 72 hours.

20 [In] December 2018, a VRO was granted for the protection of the mother and Child A against the father. The father has subsequently pleaded guilty and been convicted of four counts of breach of the VRO. He was also charged with stalking the mother, but it appears those charges were discontinued. The mother is seeking a lifetime VRO for her protection against the father, which is yet to be determined.

21 Upon the mother leaving the relationship, she reported that the father had sexually and physically assaulted her, including an attempt to strangle her. The mother deposed she was too scared to make earlier reports to the police. She alleged the father tracked her to a refuge. In the mother’s Notice of Abuse, she deposed that she lived in “constant fear that the Father will harm me and [Child A] if he finds us”.

22 On 7 December 2018, the father commenced parenting proceedings and sought, on an ex parte basis, a recovery order for Child A. On 10 December 2018, the father’s application for a recovery order was dismissed. Interim orders were made restraining both parents from removing Child A from the Commonwealth of Australia and she was placed on the Australian Federal Police watch list for a period of two years. On that date, the Court received a memorandum from the Department which set out at length the Department’s involvement with the family. The salient aspects of the report were as follows:

•The Department initiated a Safety and Wellbeing Assessment and opened a file [in late] November 2018. Concerns were raised that Child A had experienced, or was at risk of, emotional abuse and physical harm, as a consequence of high levels of domestic violence. The father was reported to have attempted to strangle and sexually assault the mother, including raping her on two occasions, while she was breastfeeding Child A. Concerns were raised about the father’s use of methamphetamine and cannabis, which may result in an escalation of his behaviour.

•The Department interviewed the father and the paternal grandmother. The father denied behaving in a threatening or physically abusive manner, accusing the mother of perpetrating violence against him. He alleged that Child A was unsafe in the mother’s care, due to her mental health, and Child A was not attached to the mother. He denied the allegations of sexual abuse. He admitted to slapping the mother in 2015. He claimed she had recently attended his workplace and attempted to stab him.

•The mother denied being violent towards the father. She explained when she was at the father’s workplace, he had physically assaulted her, including cable tying her ankles and hands, which had left marks which she showed to the Department. She claimed to have grabbed a knife for her protection.

•The father admitted to using methamphetamine and cannabis, previously on a daily basis but said he ceased around six to eight months ago. The mother alleged he was using methamphetamine but was unsure of the frequency.

•The mother denied that she suffered from poor mental health. The refuge workers had no concerns about the mother’s parenting.

•The Department considered the father posed a risk to Child A, noting his previous partner had obtained VROs for their protection, he continued to deny the allegations and attempted to blame the mother. The father said he had been Child A’s primary carer yet reported he had spent much of his time working, which had caused conflict between the parties.

•The father showed the Department a video, in which the mother was holding Child A and telling the father to let her go. The father alleged the video was evidence that the mother had spat and kicked it him, which was not observed by the workers. The video showed the father punching the mother with a closed fist twice on her hip. When they asked the father about his conduct, he said he was “playing”.

•In December 2018, the father attended on the Department, with some of the mother and Child A’s belongings, saying he was, “wiping his hands of his family”, he would sign Child A’s passport application and agreed to the mother taking Child A to Country D.

•The Department considered if the mother were to reconcile and live with the father, they would likely seek to remove Child A due to the risk issues.

23 On 11 February 2019, the matter returned to Court. Interim orders were made by consent for Child A to live with the mother, for both parents to complete [a parenting program] and for the father to complete [a further parenting program]. Both parents were required to undertake random drug urine analysis and Legal Aid were requested to appoint an Independent Children’s Lawyer.

24 The proceedings were adjourned to a Case Assessment Conference on 3 April 2019. At that time, Child A was six months old. Only the mother and the former ICL attended. It was then revealed the father was in custody. The mother brought photographs of Child A to give to the father.

25 The mother told the Consultant that she was on a bridging Visa, and she wished to remain in Australia with Child A. The mother opposed any contact between Child A and the father until his criminal matters were determined, he completed a family violence program, substance misuse counselling, and engaged with an appropriate parenting program.

26 The police information confirmed the father had in excess of 25 convictions, including multiple driving offences, possession of methamphetamine including with intent to sell and supply, breach of bail and damage to property.

27 [In March] 2019, the father was charged with additional offences including relating to illicit substances and firearms. The father had then also been charged with several offences relating to violence against the mother, including two counts of aggravated sexual penetration without consent and deprivation of liberty. The criminal charges involving the mother were listed for trial, but subsequently withdrawn by the Office of Director of Public Prosecutions.

28 The Consultant described the father’s extensive criminal record, dating back to 2004, as demonstrating a pattern of allegedly abusive and/or violent behaviour perpetrated by the father against multiple partners over many years, and wrote “perpetrating violence against women who have children is often used strategically to attack and undermine the mother/child bond, so as to further disadvantage those victims”.

29 The information available from the Department, indicated the father sought to deflect responsibility and blame the mother, which the Consultant observed was common amongst perpetrators of family violence.

30 The mother claimed that during the relationship, the father promised to sponsor her to live in Australia but had not done so. The mother explained she came to Australia to study English and denied ever working as a sex worker, which she predicted the father would say.

31 The mother claimed the father was violent, controlling, and coercive. Since fleeing to a women’s refuge, the father located her, possibly through an electronic device and sent flowers to the location. The paternal grandmother also attended the refuge on another occasion. As a consequence, the refuge staff put in place additional security measures for the mother’s protection.

32 The mother was accompanied by police to collect her and Child A’s personal possessions. She reported the paternal grandmother refused to allow them entry but provided her with a bag of toiletries and old clothing, which the mother said were contaminated with urine and human faeces.

33The mother reported that a group had attended her parents’ house in Country D and made threats against the mother and Child A. The mother reported the father used methamphetamine on a daily basis, had threatened to inject her, against her will, and described having been the victim of physical and sexual violence by the father, including in Child A’s presence.

34 The Consultant recorded due to the father’s alleged violence, chronic methamphetamine misuse, and failure to demonstrate any parenting capacity during the relationship, the mother had significant concerns if Child A were to spend any time with him, or the paternal grandparents.

35 The Consultant encouraged the father to consider what impression might be formed of him, in view of the information from the police and the Department. The Consultant concluded:

Given the nature of his alleged offending, the information to hand and [Child A’s] very young age and inherent vulnerability, it is recommended she should not spend any time whatsoever with either the father or the paternal family until such time as his criminal matters have been finalised

… Based entirely on this independent third party evidence before the Court, the father is urged to consider attending substance misuse counselling.

36 The mother filed her responding documents on 31 May 2019, including a Notice of Child Abuse, detailing allegations that the father perpetrated acts of physical, verbal, sexual and emotional abuse throughout their relationship; the criminal charges the father was then facing in relation to alleged violence, breach of the VRO, stalking, and the ongoing investigation in relation to the father’s assaults on her. The mother also detailed incidents of the father’s sexual and physical assaults against her, in the presence of Child A.

37 On 28 August 2019, the Department confirmed they were satisfied Child A was safe in the mother’s care, and no longer at risk of physical or emotional harm due to the mother obtaining a VRO for her protection, and her separation from the father. The Department confirmed they did not intend to intervene and supported the mother’s application for full custody of Child A and/or supervised contact only with the father.

38 In November 2019, the proceedings were adjourned generally by consent, with liberty to restore after conclusion of the father’s criminal proceedings.

39 Since that time, orders have been made by consent to join the paternal grandmother as a party to the proceedings. A further Case Assessment Conference was convened on 9 September 2020, with the mother and paternal grandmother. The Consultant recorded the paternal grandmother acknowledged she was effectively the father’s proxy in the proceedings. By that time, the mother had been granted a bridging visa and was applying for a protection visa, to enable her to remain in Australia. The mother maintained her objection to any contact between Child A and the paternal family. The paternal grandmother confirmed she sought Child A live with her, while the father was incarcerated, and then live with the father on his release, on the basis she expected the father would live in her home.

40 The paternal grandmother supported the father in relation to his not guilty pleas. She admitted to visiting the mother in the refuge, to deliver flowers on behalf of the father, claiming the mother had disclosed the location to the father during a telephone conversation. The mother denied having done so.

41 The paternal grandmother accused the mother of suffering from poor mental health, “she couldn’t even breastfeed”, that the mother had harmed herself, used drugs and had harmed Child A by bathing her with boiling water. She denied having witnessed any incidents of family violence between the parents, including the incident when the mother claimed the father assaulted her with an electric drill and cable tied her to a chair, in the presence of the paternal grandmother, who tied up her hair.

42 The mother became visibly upset when she heard the paternal grandmother’s denials and accusations and said, “every night I have the nightmare” where “someone is tying me up and tying [Child A] up as well”. She maintained that the grandmother’s priority was her son, and she had no confidence that she would care for Child A and protect her from harm.

43 The Consultant concluded:

This is a complex matter littered with very serious allegations of risk and featuring a child who at two years old is still very young and inherently vulnerable. While the mother has made very serious allegations regarding family violence, the paternal grandmother has entirely denied those allegations … [and] in turn … raised serious allegations of risk against the mother (all of which have also been denied). While the merits of those allegations are yet to be tested, it is noted the mother continues to reside in an environment in which she is highly supported, and where both the mother and [Child A] would also be subject to daily scrutiny from the trained staff who work there. Those staff would also have an obligation to report and act on any concerns they may have for [Child A].

Given [Child A’s] age and inherent vulnerability, and given the vast gulf between the parties’ narratives and the very serious nature of the allegations being made, it is almost impossible to make significant recommendations until their divergent positions have been subjected to the rigours of cross examination.

WHAT IS THE PATERNAL GRANDMOTHER’S CASE?

44 The paternal grandmother says before Child A was born, she spent time with the parents on an almost daily basis and she had a close and loving relationship with both parents. She was present when the mother gave birth, alongside the maternal grandmother, and cut the umbilical cord.

45 In February 2019, the mother attended the paternal grandmother’s home and “promised that she would bring [Child A] to visit with the family at my house”.[5] She has not spoken with the mother since February 2019, and had “hoped that [the mother] would keep to her word about allowing [Child A] to spend time with my family”.[6]

[5] Affidavit of the paternal grandmother filed 16 June 2021, paragraph 26.

[6] Affidavit of the paternal grandmother filed 16 June 2021, paragraph 16.

46 The paternal grandmother denies witnessing, or being aware of, any abusive or violent behaviour by the father towards the mother. She accuses the mother of having punched and kicked the father. However, she would have assisted the mother “had we known the situation she was in”.[7]

[7] Affidavit of the paternal grandmother filed 16 June 2021, paragraph 37.

47 The paternal grandmother never witnessed either parent use illicit substances but saw them “acting strangely” and a smoking glass pipe. After Child A’s birth, the paternal family would visit the mother on an almost daily basis, to assist in Child A’s care.

48 The paternal grandmother only saw the father as a caring and loving partner. She does not condone violence, and she simply wants to be part of Child A’s life, to ensure that Child A has a relationship with her extended paternal family.

49 The paternal grandmother disputes the mother is still breastfeeding and denies inviting the mother to collect her belongings, claiming the mother took most of her belongings (and some of the fathers without his consent) when she left. She denies providing items to the mother which were soiled and denies refusing the police entry to the home, saying she was cleaning up the property, after it had been broken into.

50 The mother outlines[8] an incident that she says occurred [in October] 2018, whereby the father physically abused her in his workshop. She says she was tied up and the father was beating her. The mother says the paternal grandmother arrived and saw this occurring, took no steps to intervene, but tied the mother’s hair into a bun. The paternal grandmother denies the claims, says she is disabled and was physically unable to walk upstairs to the workshop, as claimed. She denies having witnessed the assault. She further says she was unaware of any tracking device installed in the mother’s iPad, denies that her son, [Mr A], smokes cannabis and maintains that her home is free of any weapons or illicit substances.

[8] In her affidavit filed 20 July 2020 at paragraph 62, and her affidavit filed 4 August 2020 at paragraph 25.

51 The paternal grandmother currently spends time with Child B and maintains an amicable relationship with Child B’s mother, Ms Zhao. She takes Child B to visit his father in prison. She says Child B wishes to spend time with Child A.

52 The paternal grandmother supports the father in the orders he seeks to spend time with Child A once he is released from prison. She is a “loving grandmother and I would look after [Child A] and protect her from any harm. I want to be a part of [Child A’s] life and watch her grow up. I would like her to know that she is loved and is also a part of the family”.[9] She raises concerns that the mother will not “be truthful with [Child A] about her father in the future”,[10] as she has not made any effort to allow Child A to meet with her father and the family. She further complains that the mother was to provide photographs of Child A to the father but took a year to do so and the pictures were of poor quality.

[9] Affidavit of the paternal grandmother filed 16 June 2021, paragraph 41.

[10] Affidavit of the paternal grandmother filed 16 June 2021, paragraph 44(a).

53 The paternal grandfather says he had a close relationship with the mother while the parents were in a relationship. He spent significant time with her, and regularly cleaned her home. He did not witness any abuse between the parents, nor any use of illicit substances and saw the father as “very kind and loving towards [the mother]”, worked long hours to ensure the mother did not have to work, provided her with funds, and access to his computer and motor vehicle.[11] He says he was told by the father that the mother consumed illicit substances. He was present when the paternal grandmother packed the clothes given to the police for the mother. He says they were not soiled and neither he or the paternal grandmother refused to allow the police to enter, or to collect the items.

WHAT IS THE MOTHER’S POSITION?

[11] Affidavit of the paternal grandfather filed 16 June 2021, paragraph 10.

54 The mother disputes receiving substantial assistance prior to and after Child A’s birth. She says the paternal grandmother visited her during her pregnancy no more than 10 times.[12] The mother spent time at the paternal grandmother’s home after the father attacked her, to ensure neighbours did not see her injuries and report them to the police.

[12] Affidavit of the mother filed 4 August 2020, paragraph 8.

55 At Child A’s birth, she wanted her mother to cut Child A’s umbilical cord, but the paternal grandmother did it instead. The paternal grandmother visited occasionally, but was of limited assistance, because she cared for Child B on a full-time basis. Child B has only met Child A once. She denies having a close relationship with the paternal grandparents or promising to bring Child A to visit.

56 The mother denies having used illicit substances. She says the paternal grandmother is aware of the father’s drug use, which has been longstanding.

57 The mother initially said the father had placed a tracking device in her iPad, of which the paternal grandmother was aware.[13] She now believes the father used the location app on the iPad to identify her whereabouts, which the paternal grandmother facilitated.[14]

[13] The mother’s affidavit filed 4 August 2020, paragraph 26.

[14] The mother’s affidavit filed 29 July 2021, paragraph 24.

58 The mother says when she spent time at the paternal grandparents’ home, she witnessed the grandparents and their son screaming and yelling at each other, the father’s brother smoking cannabis and she witnessed violence between the father’s younger brother and sister. On one occasion, the mother said the father had a gun at their home.

59 She claims the paternal grandmother withheld Child A’s Purple Child Health book, cot, and baby necessities when the mother left.

60 She continues to breastfeed Child A. During the relationship, the mother had to supplement with formula, due to issues with her milk, which have resolved since separation.

61 The mother does not consider it in Child A’s best interests to spend time with the paternal family. She is fearful they will try and remove Child A from her care and has concerns about Child A’s safety. The paternal grandmother witnessed the father’s violence towards her, and also saw the mother’s bruises, wounds, and blood, following the father’s attacks on her, and took no steps to protect her. She considers the paternal grandmother’s priority is her son, and she has not acted in a protective manner towards the mother or Child A.

62 The mother maintains her concerns that the father may find out her and Child A’s whereabouts, if Child A spends any time with the paternal family.

WHAT IS THE FATHER’S POSITION?

63 The father has not filed any documents in support of the interim hearing. He supports the orders sought by his mother, for Child A to spend time with his parents.

WHAT IS THE ICL’S POSITION?

64 As indicated, the ICL has only recently taken over conduct from the former ICL. He notes the serious and competing risk allegations and submitted that any order for Child A to spend time with the paternal grandparents, would effectively entail Child A spending time with people who were likely strangers to her. Were the Court to contemplate such an order was in Child A’s interests, he submitted supervision should take place through Supervision Service B, as opposed to a private supervision service.

65 He submitted the available evidence suggested Child A is being well-cared for by the mother, who was a vulnerable parent, who continued to be supported by the refuge. He raised concerns that any order for Child A to spend time with the paternal family, including on a supervised basis, may negatively impact upon the mother and by extension, her capacity to care for Child A.

66 He noted the mother alleged that Child A had been exposed to incidents of violence between the parents, and the lack of any evidence about what impact that may have had upon her, noting her young age.

67 In his view, given the mother was asserting a no contact order should be made, the more prudent course of conduct may be not to make any interim orders for supervised contact, but to program the matter to trial, to allow the evidence to be tested. He foreshadowed seeking the appointment of a Single Expert Witness, subject to Legal Aid funding.

DISCUSSION AND CONCLUSIONS

68 What is not in dispute, is that:

(a)Child A is nearly three years old. She lives with her mother and has not had any contact with her paternal family since she was eight weeks old.

(b)There is no independent evidence about Child A’s development and maturity.

(c)Child A has a meaningful relationship with her mother. The evidence from the Department, supported by the observations of the refuge workers, and views of the Consultant, confirm that Child A is safe in her mother’s care.

(d)The mother has made all decisions for Child A, without input from the father since separation.

(e)The father has a lengthy history of offending and involvement with prohibited drugs. He has been convicted of multiple drug, driving and firearm offences. In the father’s sentencing report, the presiding Judge found the father’s history of illicit drug use had likely contributed to his offending, and that he was a “mid-level dealer … who had an intention to deal with methamphetamine to support [his] own use of this drug”. The father admitted to using methamphetamines to the Department.

(f)Given Child A has had no contact with the paternal family since she was eight weeks old, it is highly unlikely that she has any recollection of them, nor does she have any relationship with them.

(g)The father will remain incarcerated until at least 2028.

(h)The paternal grandmother is strongly supportive of the father, and highly critical of the mother. Her affidavit and statements to the Consultant, are littered with accusations against the mother. For example, the paternal grandmother accuses the mother of being an alcoholic, with poor mental health, she was previously a sex worker, and accuses her of violence towards the father, and making false allegations.

(i)The mother categorically denies the allegations made against her, by both the father and the paternal grandmother.

(j)The mother has raised serious allegations that she has been subjected to significant family violence at the hands of the father, including in the presence of Child A, and in the presence of the paternal grandmother. Those allegations are denied by the father, and the paternal grandmother. The Department found Child A was at risk of harm by way of exposure to family violence perpetrated by the father against the mother.

(k)The mother has been granted protection against the father pursuant to a VRO. The father has admitted to breaching the VRO and been convicted.

(l)The mother is fearful of her and Child A’s safety, were Child A to have any contact with the paternal family. The paternal grandmother has attempted to visit the mother at a refuge already, in circumstances which are in dispute. What is not in dispute, is that the police were called, and additional security measures were then put in place for the mother’s protection. The mother and Child A remain living in a refuge, at an undisclosed location.

69 There is highly conflictual evidence about the nature of the relationship between the mother and the father, and specifically, whether the paternal grandmother was aware of, and witnessed a number of acts of family violence committed by the father towards the mother. While I am unable to make any findings on the basis of the disputed evidence, I attach weight to the independent evidence provided by the Department, and the Consultant.

70 The orders sought by the paternal grandmother would involve a significant change in Child A’s circumstances, and see her separated from her mother, to spend supervised time with the paternal grandparents. If orders are made as sought by the mother, the current situation will continue, where Child A does not spend any time with them.

71 There is no independent evidence to enable the Court to assess, on an interim basis, how Child A may cope with spending time with the paternal grandparents.

72 There was limited evidence in relation to the practical difficulty and expense of Child A spending time with the paternal grandparents. The paternal grandmother proposes to meet the costs of supervision. As already deposed, the mother lives at an undisclosed location because she is fearful of the father, and does not wish for him, or the paternal family, to know of her whereabouts. Understandably, the Court then has no evidence about the geographical distances and what, if any, practical difficulties there may be with the orders proposed by the paternal grandmother.

73 These are interim proceedings only. Given the competing applications, it is highly likely that a final hearing will be required.

74 The decision the Court must make, is that which is in Child A’s best interests. There is no question that the Court has the power to make the orders sought by the paternal grandmother, should the Court consider those orders to be in Child A’s best interests. Prominent amongst the relevant considerations, are those that relate to the benefit of Child A having a meaningful relationship with each parent, the need to protect Child A from harm, from being subjected to, or exposed to, abuse, neglect, or family violence, consideration of the nature of Child A’s relationship with her parents and paternal grandparents, together with the capacity of each parent and the paternal grandmother, to provide for Child A’s needs. While other considerations may be touched upon, their significance pales in comparison to these considerations.

75 In my view, the Court must adopt a conservative approach, until such time as the evidence can be tested by way of cross-examination and findings of fact made. Taking into account the primary and additional considerations, I am not satisfied it is in Child A’s best interest to spend time with the paternal grandmother, for the following reasons:

(a)The Court is required to give greater weight to the need to protect Child A from harm or family violence. That is defined to include violent, threatening, or other behaviour by a person that controls or coerces a member of the person’s family or causes the family member to be fearful. While there is a significant dispute between the parties, I am satisfied that based on the material before the Court, there are reasonable ground to believe the mother has been subjected to family violence at the hands of the father in circumstances where:

a.She has a VRO for the protection of herself and Child A;

b.The father has admitted to slapping the mother; and

c.The father has admitted to breaching the VRO for the mother’s protection, for which he has been convicted.

I am unable to make any findings as to whether the paternal grandmother either witnessed, or was aware of, any of the violence between the parents.

(b)It is in Child A’s best interests to protect the meaningful relationship she has with her mother. The mother is Child A’s primary attachment. The available evidence is that Child A is safe and well cared for by her mother. Child A is a young, vulnerable child, who is completely dependent upon her mother for all aspects of her care. The mother’s evidence is that the father’s violence towards her, the allegations raised by both the father and his mother against her, together with their current applications, which seek to remove Child A from her care, heavily impact upon her, as corroborated by the observations of the Consultant.

(c)Any order to facilitate contact between Child A and the paternal grandmother, is likely to elevate the mother’s anxiety and fears for her and Child A’s safety. To make any order to facilitate contact between Child A and the paternal family, risks compromising the mother’s capacity as a parent, which would put Child A at risk.

(d)It is in Child A’s best interests, reliant on her mother as her primary carer, and reliant on the need to protect her from harm, to allow the mother to continue to parent Child A, without the fear and anxiety which would flow from making any order for her to spend time with the paternal family. I am not satisfied on an interim basis, that any contact between Child A and the paternal family can be facilitated in a manner that ensures the physical and emotional safety of the mother.

(e)Child A has no meaningful relationship with the paternal family. It is the mother’s case that there should be no relationship between them and proposes on a final basis there should be no contact.

(f)While there may be benefits to Child A in having a relationship with the paternal family, that can only be in her interests provided she is safe from harm. While supervision offers a level of safety, the mother’s anxiety remains, in circumstances where she has concerns that any contact risks the paternal family becoming aware of where she and Child A reside. The mother’s concerns in this regard appear to be genuinely held, and warranted, if her evidence is accepted that the paternal family located her at a refuge, which the paternal grandmother then attended.

(g)The evidence of the paternal grandmother is highly critical of the mother, and strongly supportive of the father. The mother’s concerns and fears about Child A spending time with her, are understandable.

(h)Child A must be protected from harm. There are serious allegations raised about the father, and the extent to which he poses a risk to both Child A and the mother. There are also serious allegations levelled against the paternal grandmother. While those allegations are denied, the Consultant opined that if they were found to have merit, that it would not be in Child A’s best interests to spend any time with her paternal family.

76 For these reasons, I intend to dismiss the application for any time between Child A and the paternal grandmother. I am not satisfied that the injunctions sought are in Child A’s best interests or required. There were no submissions made in support of the injunctions. There is no evidence to suggest that the mother has denigrated the father, or the paternal family to Child A, or exposed her to the proceedings, or shown her any Court documents. In circumstances where I have declined to make any order for contact, Child A will not be spending time with the paternal family and accordingly, there is no prospect of her being used as a “conduit for passing messages or information to one another concerning any parenting, financial, or child support matters”. I decline to grant the injunction.

77 I propose to hear from the parties, about any procedural orders, to program the proceedings to a Readiness Hearing.

PROPOSED ORDERS

1.The application by the paternal grandmother be and is hereby dismissed.

2.All parties’ costs be reserved to the trial judge.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

13 AUGUST 2021