Deniz and Yilmaz
[2013] FamCA 252
FAMILY COURT OF AUSTRALIA
| DENIZ & YILMAZ | [2013] FamCA 252 |
| FAMILY LAW – CHILDREN – Where there are allegations of family violence – Whether the father and the paternal family pose a risk to the children – Where a psychiatric assessment of the parents is ordered – Where it could not be found that there is an unacceptable risk of sexual abuse – Where it is agreed that the mother have sole parental responsibility for the children – Whether the father spends time with the children – Where there is a loving attachment between the father and the children – Where the father seeks to spend time with the children on an unsupervised basis – Where the mother seeks orders whereby the children would spend no time with the father but he could communicate with them – Credibility – Where the parents were poor witnesses – Capacity – Where the single expert psychiatrist was not called for cross examination – Where the children are to spend no time with the father – Where the father may communicate with the children. |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Champness & Hanson (2009) FLC 93-407 G & C [2006] FamCA 994 Johnson v Page (2007) FLC 93-344 Leighton & Carey [2010] FamCAFC 94 M v M (1988) 166 CLR 69 McCall & Clark (2009) FLC 93-405 Mazorski & Albright (2007) 37 Fam LR 518 |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA Evidence Act 1995 (Cth) |
| APPLICANT: FATHER | Mr Deniz |
| RESPONDENT MOTHER: | Ms Yilmaz |
| FILE NUMBER: | PAC | 4311 | of | 2010 |
| DATE DELIVERED: | 17 April 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Loughnan J |
| HEARING DATES: | 1, 2 & 3 November 2011 and 27 & 28 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT FATHER: | Mr Greenaway (1-3 November 2012 only) |
| SOLICITOR FOR THE APPLICANT FATHER | Barber Lawyers |
| COUNSEL FOR THE RESPONDENT MOTHER | Mr Weaver (1-3 November 2012) Mr Schroder (27 & 28 March 2013) |
| SOLICITOR FOR THE RESPONDENT MOTHER | Adams & Partners |
| COUNSEL FOR THE INDEPENDENT CHILD LAWYER | Mr Fermanis |
| SOLICITOR FOR THE CHILD | Gonzales & Co. |
Orders
1.All previous parenting orders relating to B born … March 2007 and C born … July 2008 are discharged.
2.The mother shall have sole parental responsibility for the children.
3.The children shall live with the mother.
4.The children shall spend no time with the father.
5.The parents shall take all reasonable steps to ensure that the father is able to communicate with the children as follows:
a.by the father sending letters, cards and gifts to the children at an address nominated by the mother; and
b.by the mother promptly sending the father a written acknowledgement of receipt of the father’s written communication.
6.Within fourteen (14) days from the date of these orders, the mother shall notify the father of her postal address for the purposes of the communication in order 5 above.
7.Each party is restrained from denigrating the other in the presence or hearing of the children or either of them, or in a document to which the children are likely to have access, and from permitting the children or either of them, to remain in the presence or hearing of another person denigrating the other parent.
8.Each party is restrained from causing or permitting the children to be known by any first name other than B and C, respectively.
9.Each party is restrained from interrogating the children regarding the household of the other party or permitting any third person to do so or questioning the children about their residential address or school name or address.
10.As soon as practicable, the mother shall notify the father of any medical emergency, illness or injury suffered by the children or either of them.
11.The mother shall promptly provide to the father copies of school reports for the children save that she is permitted to erase from such copies any information that would allow the school/s to be identified.
12.The independent children’s lawyer is discharged.
13.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the attached Fact Sheet.
IT IS NOTED that publication of this judgment under the pseudonym Deniz & Yilmaz is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4311 of 2010
| Mr Deniz |
Applicant
and
| Ms Yilmaz |
Respondent
REASONS FOR JUDGMENT
introduction
These are parenting proceedings involving two children, B[1] who was born in March 2007 and C who was born in July 2008 (“the children”). The parties are agreed that the mother shall have sole parental responsibility for the children and that the children will live with her. The controversy relates to whether the father spends time with the children. The father seeks to spend time with the children on an unsupervised basis. The mother seeks orders whereby the children would spend no time with the father but he could communicate with them by letters, cards, and gifts.
[1] The name of the older child is variously said to be …, ,,, and B. Just to add to the confusion, the mother calls her …. With the consent of the parties’ counsel I will refer to her as B.
applications
The hearing was conducted in two phases, in November 2011 and March 2013. The orders sought by the parties changed to some extent. The father originally sought that the children live with him and that he have sole parental responsibility. However, by a Minute of Orders handed up on 27 March 2013 the father sought:
1.That the Respondent Mother to have sole parental responsibility for the care, welfare and development of the children [B] born [in] March 2007 and [C] born [in] July 2008 (“the children”).
2.That the children B born [in] March 2007 and [C] born [in] July 2008 (“the children”), live with the Respondent Mother.
3.(a) That the children will spend time with the Applicant Father every alternate weekend from 10 am on Saturday til 5.00 pm on Sunday.
(b) That the Children will spend 4 hours with the father on their respective birthdays being… March and between the hours of 4.00 pm till 8.00 pm if such a day does not fall on a weekend or a Wednesday when the child is spending time with the father.
(c) That the children spend time from 10.00 am till 6.00 pm on festive days being the first day of Ramadan and the first day of Eid.
(d) That the Children spend time with the father from 10.00 am till 6.00 pm on the father’s birthday and father’s day if the father’s birthday day and father’s day does fall on a weekend when the children are otherwise spending time with the mother.
4.For the purpose of the child spending time with the Applicant Father, the Applicant Father will collect the children from the mother’s place of residence or any other place as specified by the mother and return to the place specified by the mother at the completion of the time the children spend time with the Applicant Father.
5.The Court notes that any additional time that the children are to spend with the Applicant Father will be subject to the parties agreeing to such time with 7 days written notice to be provided by the Applicant Father to the Respondent Mother and in the absence of an agreement the children spend time with the father for the first week of every school holiday in years ending with even numbers and the second week of every school holiday in years ending in odd numbers and further more the children to spend equal time with the father during the Christmas holidays.
6.The Court also notes that the Applicant Father is to provide the children with proper sleeping arrangements and all other arrangements for the care of the children once overnight time has commenced.
By a Minute of Orders handed up on 28 March 2013 the mother sought:
1.All previous parenting orders relating to [B] (date of birth … March 2007) and [C] (date of birth … July 2008) (“the Children”) be discharged.
2.The Mother shall have sole parental responsibility of the Children.
3.The Children shall live with the Mother.
4A.That the Father have no time with the children.
4B.That the Father spend time with the Children supervised at a Contact Centre chosen by the Mother, or an accredited professional service paid for by the Father (at his option) for no more than one session of two hours per fortnight.
5.For the purpose of implementing Order 4B hereof:
a.That the supervised time will be for the benefit of the Father only.
c.Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.
d.The Father shall pay any costs of the supervisor.
g.The Mother shall cause the delivery of the Children to, and the collection of the Children from, the designated venue at the commencement and conclusion of the time spent by the Children with the Father, with the Father to not arrive until 15 mins after delivery and to immediately leave after his time with the Children.
i.The Mother and Father shall comply with all reasonable requests and directions of the supervisor.
6.The parties shall take all reasonable steps to ensure that the Children are able to communicate with the Father in the following manner:
k.By the Father being able to send letters, cards, and/or gifts to the Children to an address nominated by the Mother, and
l.By the Mother promptly sending to the Father written acknowledgement of receipt of the Father’s written communication.
7.Each party is restrained from denigrating the other in the presence or hearing of the Children, and from permitting the Children to remain in the presence or hearing of another person denigrating the other.
8.Each party is restrained from causing or permitting the Children to be known by any first name other than [B] and [C] respectively.
9.Each party is restrained from interrogating the Children regarding the other party’s household, or permitting any third person to do so, or questioning the Children about their address or school’s address.
10.The Mother shall notify the Father of any medical emergency, illness or injury suffered by the Children whilst in her care.
11.The Mother shall provide the Father with copies of all school reports for the Children with any identification for the school being erased.
15.The Independent Children’s Lawyer be discharged.
Counsel for the mother clarified that 4B was not the mother’s proposal but her response in the event that the Court rejected her application that the father spend no time with the children.
By a Minute of Orders handed up on 28 March 2013 the Independent Children’s Lawyer sought:
1.All previous parenting orders relating to [B] (date of birth … March 2007) and [C] (date of birth … July 2008) (“the Children”) be discharged.
2.The Mother shall have sole parental responsibility of the Children save that the Mother shall, prior to making the sole ultimate decision about any long term issues during that period:
a.advise the Father in writing of the decision intended to be made;
b.seek the Father’s written response in relation thereto;
c.consider by reference to the best interests of the Children any such response prior to making any such decision; and
d.advise the Father in writing as soon as reasonably practicable of her ultimate decision.
3.The Children shall live with the Mother.
4.Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that the Children spend time with the Father for no less than four hours per month, with such time to be supervised.
5.For the purpose of implementing Order 4 hereof:
a.The supervisor of the time spent by the Children with the Father shall be staff at “[D Care]”, staff at “[E Care]”, staff at “[F Care]”, staff at “[G Care]”, or some other person or entity nominated by one of those organisations or persons, in that order of priority.
b.In the event of disagreement between the parties, the Mother shall do all such things necessary to engage the supervisor.
c.Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.
d.The Father shall pay any costs of the supervisor.
e.The time that is to be spent by the Children with the Father shall commence at the time designated by the supervisor.
f.The supervisor shall designate the venue at which the time is to be spent by the Children with the Father.
g.The Mother shall cause the delivery of the Children to, and the collection of the Children from, the designated venue at the commencement and conclusion of the time spent by the Children with the Father.
h.If on an occasion that the Children is due to spend time with the Father that time together cannot be accommodated by reason of closure of the venue designated by the supervisor then the time the Children would otherwise have spent with the Father shall be made-up at another time as close to the original time as can reasonably be arranged.
i.The Mother and Father shall comply with all reasonable requests and directions of the supervisor.
j.Leave is granted to the parties to provide to the supervisor a copy of these orders and a copy of the reasons for judgment.
6.The parties shall take all reasonable steps to ensure that the Children are able to communicate with the Father in the following manner:
k.By the Father being able to send emails, letters, cards, and/or gifts to the Children on or about dates proximate to their respective birthdays, his birthday, Father’s Day, Eid and Christmas Day to an address nominated by the Mother, and
l.By the Mother promptly sending to the Father:
i.Written acknowledgement of receipt of the Father’s written communication, and
ii.Any emails, letters, cards, photographs, or other written communication that the Children wish to be conveyed to the Father.
7.Each party is restrained from denigrating the other in the presence or hearing of the Children, and from permitting the Children to remain in the presence or hearing of another person denigrating the other.
8.Each party is restrained from causing or permitting the Children to be known by any first name other than [B] and [C] respectively.
9.Each party is restrained from interrogating the Children regarding the other party’s household, or permitting any third person to do so.
10.The Mother shall notify the Father of any medical emergency, illness or injury suffered by the Children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the Father about the condition and treatment of the Children.
11.The Mother shall provide the Children’s schools and preschools with a written authorisation to provide the Father with copies of all reports, photographs and any other documents. In the event that the school or day care indicates it is unable to facilitate this request, the Mother is to provide the Father with copies of those items.
12.The Mother shall provide each of the Children’s treating doctors with a written authorisation to provide the Father with information and copies of all reports as requested. In the event that the doctor indicates s/he is unable to facilitate this request, the Mother is to provide the Father with the requested information/documentation.
13.Leave is granted for the Mother to provide a copy of these orders to the:
a.Principal of any school attended by the Children; and
b.Medical professionals attended upon by the Children.
14.Each party shall forthwith inform the other, and keep the other informed, in writing, of their respective current residential address, mobile telephone number, and email address, save and except for the Mother’s current residential address.
15.The Independent Children’s Lawyer be discharged.
Those orders were proposed before the father had confirmed the orders he sought. In the course of submissions, counsel for the ICL said that the conditions set out a. to d. of order 2 were not pressed.
written evidence
The father relied on:
Father’s Amended Initiating Application filed 21.9.2010.
Father’s affidavit sworn 7.6.2011
Father’s Affidavit filed 13.9.2011
Father’s Affidavit filed 27.10.2011
Father’s Affidavit sworn 20 March 2013 and filed 21 March 2013
Affidavit of Mr H (Paternal grandfather) filed 13.9.2011
Affidavit of Ms I (Paternal grandmother) filed 13.9.2011
Affidavit of Mr H sworn 21.6.2011
Affidavit of Ms I sworn 21.6.2011
Affidavit of Ms K sworn 20 March 2013 and filed 21 March 2013
Proof of evidence of Mr L dated 2.11.11
The mother relied on:
Mother’s Further Amended Response filed 27.6.2011
Amended Notice of Child Abuse or Family Violence filed 8.11.2010
Mother’s Affidavit sworn 31.5.2011 and filed 1.6.2011
Mother’s Affidavit sworn and filed 27.6.2011
Mother’s Affidavit sworn and filed 17.10.2011
Mother’s Affidavit sworn 24.1.2012 and filed 30.1.2012
Mother’s Affidavit sworn 2.8.2012 and filed 7.8.2012
Expert Evidence
The following expert evidence was relied on:
The Project Magellan Report dated 19 November 2010
The Report of Mr O dated 4 March 2011
The Report of Dr M dated 8 June 2012
THE HEARING
The hearing commenced on 1 November 2011. On 3 November 2011 judgment was reserved.
On 2 December 2011, for reasons published on that day the following orders were made:
1.Through the Independent Children’s Lawyer, the parties join in instructing a Forensic Psychiatrist to prepare a report pursuant to Chapter 15 of the Family Law Rules and other than any contribution by the Legal Aid Commission, the father is to bear the costs of that report.
2.The report is to address the mental health of the parents and the children, such of the matters referred to in paragraphs (2) and (3) of section 60CC as apply to the family and any other matter the expert considers relevant to the welfare of the children.
3.The proceedings are adjourned part-heard to a date to be fixed following the release of the report of the single expert Psychiatrist.
4.Until further order the time spent by the father and the paternal grandparents with the children, [B] and [C] be increased to once a fortnight but on the conditions fixed by the current interim order or on such other conditions as are agreed between the parties in writing.
5.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the attached Fact Sheet.
6.Leave is granted to the parties to restore the proceedings to the list within 21 days by arrangement with the Associate to Loughnan J and each other in relation to the wording of these orders.
Thus the hearing was adjourned part-heard.
The Report of Mr M, a Forensic Psychiatrist dated 6 June 2012 was released to the parties.
Ultimately the hearing was listed to resume on 27 and 28 March 2013. New advocates appeared for the parents. On 28 March 2013, judgment was again reserved.
relevant people
There are two children of the parties’ relationship, B who was born in March 2007 and C who was born in July 2008.
The following are the persons identified as having particular significance in their lives being persons about whom there is detailed evidence:
The father was born in Sydney in 1982. At the conclusion of the trial he was 30 years of age and lived with his parents. As at March 2013 and for much of the time before then, he was unemployed. When engaged in paid employment he worked as a driver and in other capacities in his father’s business and on occasions as a repairman.
The mother was born in Melbourne in 1974 and at the conclusion of the trial she was 38 years of age. At all relevant times she was engaged in home duties.
The paternal grandfather was born in 1962 and was 51 years of age. He migrated to Australia in 1982. As at November 2011 he managed his business. There was no updating evidence from him for the March 2013 hearing.
The paternal grandmother was born in 1963 and was 50 years of age. She migrated to Australia in 1970. As at November 2011 she worked on a permanent casual basis in the healthcare industry. There was no updating evidence from her for the March 2013 hearing. The paternal grandparents were married in 1981.
The mother’s brothers, a sister in law and several nieces and nephews were involved in the lives of the children but none of them were called to give evidence in the mother’s case.
short history
The parents started living together in around April 2004. The father says the parties married in 2009 in Turkey. The mother says the parties were never validly married. The parties separated on 20 August 2010.
CREDIBILITY
This case involves very serious allegations, including allegations of physical abuse of the mother and children by the father and sexual abuse of B by the paternal grandfather. The alleged behaviours occurred in private or at least in the absence of any independent witnesses. In those circumstances the credit of witnesses is important.
The father was not a good witness. He was asked about an incident in June of 2006 when he called an ambulance and was hospitalised overnight. His version of the event made no sense of the hospital records. He gave evidence to the effect that he suffered a high fever, took two Nurofen tablets, still felt unwell, called an ambulance at about 1.30 am and was taken to hospital. In cross-examination he rejected the proposition that he intended self harm. The hospital notes, many of which, I infer, were made based on his representations, contradict his version of events. On the last day of the first stage of the trial leave was sought on the father’s behalf to reopen his case in order to give evidence to the effect that his earlier evidence was false and that on the occasion in question, he had tried to kill himself. No explanation was offered by him or on his behalf for the earlier false testimony. Whatever one might say about that, the father’s credibility was thereby damaged.
By his affidavit and evidence in cross-examination the father sought to minimise the events of 20 August 2010, the date of separation. At first in cross-examination he suggested that there was an argument between the parties about the mother’s failure to launder his work uniform and he left the home and drove away to clear his head. He later allowed that the mother pushed him and he pushed her. He conceded that the mother might have fallen on or across the end of a bed. It is the mother’s evidence that the father punched her in the head on several occasions. The fact is that the father was convicted in March 2011 in the Local Court of Assault Occasioning Actual Bodily Harm and was placed on a bond for 18 months under s 9 of the Crimes (Sentencing Procedure) Act 1999. The father set out to mislead the court in relation to that event.
It is the father’s evidence that some of the findings made by Dr M were not based on an accurate report by the doctor of his interview with the father. Dr M was not called for cross-examination. The father’s testimony conflicts with that of his aunt, Ms K. For example, he gave evidence that she did not seek his permission before videoing the children on 16 March 2013. It is her evidence that she did. In that context it is impossible to take at face value the father’s uncorroborated testimony. The father was not a creditworthy witness.
Ms K is the father’s aunt. She was not a good witness, largely because she repudiated aspects of her own affidavit. For example she did not agree with her evidence at paragraph 13 of that affidavit. It did not help that the father had been present when she gave instructions to his solicitor for her March 2013 affidavit and had acted as the interpreter for that document.
The paternal grandfather gave his evidence clearly and directly. He made no concessions in cross-examination and was not successfully challenged. It was submitted on behalf of the mother that the fact that he emphatically rejected innocuous propositions put to him revealed him to be an untruthful witness. I reject that submission. His answers were also consistent with him telling the truth. There is no corroborative material with which the evidence of this witness could be impugned.
The paternal grandmother also gave her evidence clearly and directly. She made some concessions in cross-examination. For example she agreed that she arranged for B to have her ears pierced at an early age without obtaining the mother’s permission. It was her evidence, however that the mother herself had wanted B’s ears pierced at an even earlier age and the paternal grandmother had talked her out of it. The paternal grandmother was not successfully challenged. It was submitted on behalf of the father that the above concession represented a concession against interest. It is further submitted that the obvious struggle experienced by the paternal grandmother when asked if she could promote the children’s relationships with their mother and could communicate with her, revealed a genuine attempt to give truthful answers. On balance I accept that submission.
Mr L was called to adopt his proof of evidence and rigidly adhered to his evidence. He concedes in the proof that he has substantial connections with the father and his family. Albeit that he did not resile from his testimony, there is no suggestion that he is an independent or entirely objective witness.
On several occasions during her cross-examination the mother said she could not recall significant events. In her affidavit she said that she did not and does not have a problem with alcohol or drugs. However, she agreed that she may have had hallucinations on the only occasion when she used marijuana. She does not know when that happened. She might have seen angels and demons but she thinks that the images were blurry. At one point in her cross-examination the mother answered ‘no’ and then ‘I don’t know’ straight after. The mother was apparently overcome during much of her oral evidence, particularly in the first phase of the hearing. She shook, breathed heavily and mumbled her evidence with her head in her hands. There was no credible explanation given by the mother for her reference to Mr O about a mediated solution (with the father). She said that referred to her desire to give her condolences to the father’s family about the death of the father’s uncle. She was not able to explain the reference in certain records to her no longer holding fears about the father, nor her apparent change of heart after her refuge accommodation was threatened.
In the second phase of the hearing, in March 2013, the mother again struggled, although not to the same extent as in 2011. Again she appeared to become upset during the hearing, not only when giving evidence. At one point she required time to compose herself. She had great difficulty in addressing the questions asked of her, both in cross-examination and in the course of examination by her own counsel. The mother was a poor witness.
Mr O gave evidence as the single expert Social Worker and his credit is not in issue.
Dr M gave evidence as the single expert Psychiatrist and although aspects of his evidence were challenged, he was not called for cross-examination.
The issues
The ICL identified the following issues for the trial:
1.whether the Father has perpetrated family violence as against the Mother and the Children;
2.whether the Paternal Grandfather has engaged in sexually in appropriate behaviour with [B];
3.what are appropriate parenting orders having regard to whether the Mother’s allegations are true;
4.if the Mother’s allegations are untrue:
a.what is the Mother’s capacity to adequately meet the Children’s parenting needs without additional support;
b.what is the Father’s capacity to adequately meet the Children’s parenting needs without additional support?
c.should the parties have shared parental responsibility in respect of the Children?
5.if the children continue to live with the mother, what risk (if any) does the father pose to the children if he is to spend time with them; and,
6.if the father is to spend time with the children, should that time be:
a.supervised;
b.unsupervised;
c.a mixture of both.
The mother’s counsel identified the following issues for the trial:
1.the benefit to the children of having a relationship with both parents;
2.the need to protect the children from the risk of harm;
3.the allegation of family violence;
4.the capacity of the parents;
5.the likely effect of change on the children;
6.whether the Court should make an order for sole parental responsibility;
7.whether the proposed orders are reasonably practicable;
8.whether the father should spend time with the children;
9.the psychiatric assessment of the mother and father; and,
10.whether there should be supervised time.
The father’s counsel identified the following issues for the trial:
1.the parenting capacities of each of the parties;
2.the nature of the relationship of the children with the parties including the parental grandparents
3.the mother’s allegations as to various inappropriate behaviours in relation to [B] and to herself;
4.the alleged sexualised behaviour of [B];
5.family violence;
6.the mental health of the parties;
7.the ability of the parties to foster a meaningful relationship between the children and the respective parties;
8.the failure of the mother to respond to requests in relation to her allegations raised in her affidavit material; and,
9.the filing by the mother of further allegations in her most recent affidavit filed 27.6.2011.
It should be noted that not all of the issues were addressed in submissions, even by the party who raised them.
background evidence
The parents met on 28 March 2004 and commenced a relationship shortly thereafter. They first lived together in Suburb P.
The father was employed in a semi-professional capacity at the commencement of the parties’ relationship. He worked in various other jobs including as a driver.
The mother gave evidence that in early 2006, the father attacked her when she was pregnant with B and made verbal threats against her life when she left the home to stay with a family member in Suburb Q. The mother says when the father found where she was, he had a knife mark across his throat and he told her he had cut his throat. The mother says she called police and the father was arrested and taken to a psychiatric hospital ward.
In around 2006 the mother made an application for an Apprehended Violence Order (AVO) but said the father forced her to drop the charges. The father told Suburb R Hospital in June 2006 that the mother had an AVO against him. The hospital records show and the father belatedly conceded, that he attempted to kill himself. The father asked the hospital to ring the mother so the keys to his house could be provided to a friend and the father’s wallet, keys and cigarettes could be provided to him in hospital. On those facts I take it that at that time the parties lived separately but had some level of interaction.
B was born in March 2007.
In about April 2008 the parties moved into the paternal grandparent’s unit in Suburb S.
C was born in July 2008.
In around June 2009, the parties, the children and the paternal grandparents travelled to Turkey.
In July 2009, the father says the parties were married in Turkey. The mother says that the father pressured her into signing various documents whilst she was in Turkey. She says an Imam visited the family while they were having a birthday party for B and that Arabic words were said, but that no “marriage” took place. It is neither necessary nor possible to make a finding as to whether or not the parents are married.
In around September 2009 the parties, the children and the paternal grandparents returned to Australia.
The mother says that in around June 2010 the father became angry and threw a chair, which hit her. She says C was present at the time.
The mother says that in around July 2010, the father became angry, slapped B in the face and pulled her hair. The mother says B was crying and her mouth started bleeding and she had red marks on her face. The mother says she yelled at the father to stop hitting the children and shielded the children from him with her body and then the father “thumped” the mother in the back. She reported that the father then picked her up, threw her onto a dressing table, pushed her head into a door and punched her. The father substantially denied those allegations.
The father said that up until 10 August 2010, the children spent three to four days per week at the paternal grandparent’s home.
On 20 August 2010, the parties’ relationship broke down. The parties had an argument. The father assaulted the mother.
The mother said she was removed from the father’s residence by police because of “domestic violence”. The mother says the father hit C whilst she was outside watering plants. After hearing the father yelling and C crying, she came inside and saw that C had a red mark under his eye. The mother alleged the father started yelling at her and chased her into the main bedroom, where she crouched down and raised both her hands to protect her and the father punched her several times in the face causing her injuries. The mother said she called the police and was taken to Suburb S Hospital for treatment.
The mother refused to allow the father and the paternal grandparents to see much of the children from that date.
In or around early September 2010, whilst the mother was changing C, she says B said that “Dada has one of those but his is bigger”. The children refer to their paternal grandfather “Dada” or “Dede”.
On 13 September 2010, the father and paternal grandparents filed an application in the Federal Magistrates Court and thereby commenced these proceedings.
On 21 September 2010, the father filed an Amended Initiating Application, effectively removing the paternal grandparents as parties to the proceedings.
The mother said that in around late September 2010, C pulled B onto him and began to rock back and forth with their private parts against each others while fully clothed. The mother said she separated the children but B went back and started doing it again.
The mother said that on 2 October 2010, B was undressing a doll when she pulled her pants down, bent over and used her hands to pull her bottom cheeks apart and said “Dada put needle in there…”. The mother notified her caseworker for advice and made a report to Department of Human Services, Community Services (“the Department”).
The mother said that on 4 October 2010 she was changing C’s nappy and B wanted to look and touch C’s penis. The mother said that after she put C’s nappy on, B put her hand inside C’s nappy and said “Dada does this”. The mother said that she replied “Did he do this to you?” and B replied, “No, he does this to himself”. The mother said B then pointed to her own private parts and said “put here” and the mother replied “what?” and B said “needle” while pointing to C’s penis. The mother said that she said to B “did you say no to Dada?” and that B said “Dada would hit me” and then hit her own lap.
On 4 November 2010, the mother filed a Response and a Notice of Child Abuse or Family Violence.
On 8 November 2010, the mother filed an Amended Notice of Child Abuse or Family Violence.
On 15 December 2010, Orders were made providing that this matter be transferred to this Court and placed in the Magellan list. Magellan is a Family Court program for cases involving allegations of significant violence and or sexual abuse.
On 14 February 2011, the Magellan Report was released, identifying a risk of sexual harm on 19 November 2010. The matter was referred to the NSW Joint Investigative Response Team (“JIRT”). The report found that B’s sexualised behaviours were out of the normal range for a child of her age.
On 15 February 2011, Registrar Bartlett ordered that a Family Report be prepared in the matter.
On 4 March 2011, Family Consultant, Mr O released the Family Report.
On 9 March 2011, a final AVO was made by the Local Court to protect the mother and children from the father for a 12 month period. The father was convicted on a charge of Assault Occasioning Actual Bodily Harm and was placed on a bond for 18 months.
On 31 March 2011, the mother filed an Amended Response.
The mother said that in about late March or early April 2011 the paternal grandfather offered her money to resolve the family law proceedings.
On 21 June 2011 the mother says that she was putting hair serum into her hair from a bottle whilst the children were present. She says B said “Dede did that too and he put it on my face”.
On 27 June 2011, the mother filed a Further Amended Response.
On 5 July 2011 orders were made fixing the matter for hearing commencing on 1 November 2011. In terms agreed between the parents, an order was also made providing for the children to live with the mother and spend time with the father for 2 hours on the third Sunday of each month, supervised by an organisation called F Care.
The father’s time was later increased to four hours each month.
The first phase of the hearing was conducted in November 2011 and judgment was delivered on 2 December 2012, as referred to above.
The parties attended on Dr M and his report of June 2012 was released.
On 13 December 2012 the parties attended a mediation conference under the auspices of the Legal Aid Commission and settled heads of agreement as follows:
1. That the children [B] born …/3/2007 and [C] born …/7/2008 spend time with the father as follows;
1.1Each alternate Saturday commencing 15 December 2012 and such time to occur in the presence of the mother and the paternal aunt [Ms K].
2. For the purposes of 1.1 the time is to take place in [Suburb Q] at a venue as agreed but failing agreement the time commence in front of platform … adjacent to [the shopping centre at Suburb Q].
3. The parties agree not to discuss the proceeding or any issues relating to their past relationship in the presence of the children.
Pursuant to that agreement the parties arranged for the father to see the children on various dates. The only evidence about the occasions arranged under that agreement is that of the father and his aunt, Ms K. The first of those occasions was on 15 December 2012 and commenced with the parties meeting at the shopping centre at Suburb Q. Ms K was late. Without seeking or obtaining the permission of the mother, Ms K brought her own child with her. Although not mentioned in the father’s affidavit, Ms K deposed:
13. For the duration of the visit I was mainly cutting water melons and fruits and talking to the respondent (the mother) while the children were playing with the applicant (the father) and at times they disappeared out of my sight and possibly the respondent’s sight for a couple of minutes.
14. I did not observe any immediate and sudden concerns by the respondent to the children’s momentary disappearance out of sight.
15. I noticed that she was relaxed and continue with her conversation with me.
16. I saw [C] running and also say him stumble on the grass and he suffered few minor scratches.
17. I heard the respondent blame the applicant for [C’s] fall when she said words to the effect “you have to be careful with the children.”
As is referred to above, there are several problems with Ms K’s affidavit, not least of which is the fact that during cross-examination she rejected the contents of paragraph 13.
The father lives with his parents and gave unchallenged evidence that one of the rooms in their house was available for the children to stay. He said in November 2011 that he was working as both a driver and as a repairman with his brother. He gave evidence then that he was not fully engaged in work. He and his parents said that he would soon commence working five days a week from about 4.00pm to about 12.00 midnight or 12.30. He sometimes helped out in his brother’s repair business and expected to do that on the Saturday following the first phase of the hearing. As at March 2013 the father gave his occupation as “unemployed”. However, I note the unchallenged evidence of Dr M about the difficulty he had in pinning the father down to a coherent response in relation to that issue.
In November 2011 the mother lived in a three bedroom unit with the children. The children each had their own room. No one else lived in the unit with them. I gather that the mother changed address between hearings. She sought and obtained permission not to reveal her address in giving her evidence in both phases of the hearing. In November 2011 she said she did not want to disclose her address or the preschool the children were attending as she feared for her safety and that of the children. In March 2013 she did not volunteer and was not asked about any changes in her basic living arrangements. I take it then that she continues to live with the children but otherwise alone, in rented premises. B commenced school in 2012. The mother is not in paid employment.
The expert evidence
The Magellan Report
The Court has had the assistance of a Report prepared by the Department. The report is undated but was ordered on 15 December 2010 and was distributed to the parties under cover of a letter from the Registrar of 14 February 2011.
The Report records four risk of harm reports in relation to the children. The record of notifications is as follows:
Date of Contact
Primary Risk of Harm
Proceeded to secondary assessment
Outcome
25 March 2009
Risk of psychological harm
No
Nil
20 August 2010
Domestic violence child exposed to violence
No
Nil
20 September 2010
Domestic violence
No
Nil
19 November 2011
Risk of sexual harm
Yes – referred to Joint Investigative Response Team
Substantiated risk of harm should contact resume with paternal family
According to the report, the initial risk of harm reports related to domestic violence between the parents. The police responded to an incident on 20 August 2010 when it was alleged that the father punched the mother repeatedly in the head. The mother sustained cuts and bruises and was seen at Suburb S District Hospital. The child C, then two years of age, was present during the incident. The police obtained an AVO for the protection of the mother and arranged for accommodation for her and the children. The father was arrested.
On 18 November 2010 B disclosed that her paternal grandfather put his ‘needle’ into her rectum. She complained of being sore in her genital region after access with her paternal grandfather. She displayed sexualised behaviours out of the normal range for a child of her age such as a preoccupation with touching the other children’s genitals and rocking and rubbing her pelvis against her brother’s pelvis (both fully clothed).
The report was accepted by the JIRT team and the child was interviewed on 1 December 2010. The report was not substantiated due to the child’s age and on the basis of the interview. However, the risk of harm was substantiated given that B displayed sexualised behaviours and because the child protection history for both B and C involved serious incidents of physical and verbal domestic violence perpetrated by the father on the mother in the presence of the children. In the assessment of the Department, the children were at risk of harm if they were to have contact with their father and/or paternal family. That assessment was based on casework, police records, child protection history and the JIRT investigation. The Report notes that:
a) The mother is protective and appropriate in caring for the children. They are residing in a safe environment with their mother;
b) The mother is accessing support services and receiving victims of crime counselling.
c) There is a current AVO in place which restricts contact between [B] and her father.
The Department advised that it had no intention of intervening in these proceedings or taking further action.
The Evidence of the Family Consultant
Mr O is a Family Consultant employed by the Family Court and was appointed as the single expert in these proceedings. He was awarded an Associate Diploma Social Science (Community Welfare); and Bachelor and Masters Degrees in Social Work. Mr O worked as a District officer for DoCS from 1994 to 1996; as a Counsellor from 1998 to 1999; as a Social Worker in a hospital Child Protection Unit from 1996 to 2005; as an Occasional Lecturer and Topic Author from 2004 to 2008; Acting Social Worker and Senior Clinician/Team Leader in a hospital Child Protection Unit from 2005 to 2006; Social Worker and Senior Clinician/Team Leader in a hospital Child Protection Unit from 2006 to 2009; and as a Family Consultant at the Family Court from 2009 to date.
For his report of 4 March 2011 Mr O interviewed both parents on 21 February 2011 and 2 March 2011 and briefly spoke to them by telephone in 22 February 2011. On 21 February 2011 he also interviewed the paternal grandparents and spoke to the ICL and the father by telephone. On 21 February 2011 and 2 March 2011 Mr O observed the children with the father and his parents and also with the mother.
The mother told Mr O that the husband became violent toward her in the first week of their relationship in 2004. She said that she was vulnerable at the time and that the father knew this. She had lost both of her parents and had survived an earthquake in Turkey.
The mother relayed the incident of August 2010 to Mr O and described it as the worst incident of violence that had occurred between the parties.
Mr O said that the mother told him about an incident where the father grabbed C by the head and shook him. She also told Mr O that the father had slapped C and had hit B causing the inside of her mouth to bleed. The mother said that while the parties were in Turkey in 2009, the paternal grandmother slapped B on the face and that her mouth bled.
The mother explained her concerns that B had been sexually abused by the paternal grandfather. The father said that the paternal grandfather was “over the moon” when his granddaughter was born and, of the sexual abuse allegations, said that his father would never do that.
In his interview with the father, Mr O was told that the mother had a “mental disability”. He said that the mother would shout at him, that he was fearful of her because she kept a large kitchen knife in the bedside drawer when she slept.
During the first observation occasion on 21 February 2011, Mr O observed the children to engage in play with the father. They appeared excited in their interactions with him. The children reacted positively to seeing their paternal grandparents. The paternal grandfather was observed to be predominantly engaged with and physically affectionate with B. B appeared comfortable.
The children became distressed as the paternal grandparents prolonged their goodbyes to the extent that Mr O ultimately directed that they, and the father, leave the observation room.
On the second observation occasion on 2 March 2011, the children again engaged in play with the father and responded positively when the paternal grandparents entered the room. On this occasion, the paternal grandfather was observed to primarily engage in activities with C.
In his observation of the children with the mother, Mr O noted that the C settled quickly following his distress at the conclusion of the first observation with the paternal family. B, on the other hand, continued to be distressed and cried on the floor through the observation with the mother. The mother commented to Mr O that the children were tired.
On the second occasion when the children were observed with the mother, Mr O said that they appeared calm and comfortable with the mother. They engaged in play with her and appeared to follow the mother’s directions. For example, Mr O said that C started climbing up some shelves, that the mother gently said to him “don’t climb up” and that C complied. Mr O noted that the mother appeared to react or respond to the children rather than play with them but that this may have been because they were in an unfamiliar environment.
Mr O said that the children appeared to have had a generally positive relationship with the father and the paternal family. He said that this does not exclude the possibility of physical or sexual abuse occurring and does not necessarily mean that they have not been exposed to domestic violence but does suggest that those issues were not the over-riding dynamic in the relationships. He said this was consistent with the mother’s statements that there had been positive times for the children and father.
Mr O said that the mother may have some difficulty managing or responding to the children’s behaviour at times. He could not determine whether there are similar issues for the father. Mr O explained that this would be difficult to assess given the children’s obvious excitement to see the father after several months of there being no contact.
On his assessment of the records obtained from NSW Police, the incidents of family violence appeared to Mr O to have been “conflict-instigated violence” as opposed to “coercive controlling violence”. Mr O noted that the parents offered different accounts on the issue of family violence and said that it was beyond the scope of his assessment to determine the veracity of each account.
In relation to the sexual abuse allegations, Mr O said that it was concerning that the Department found that the risk of future sexual harm was substantiated. He noted that it was not clear how those conclusions were reached. He pointed to the medical examination of B in relation to the abuse allegations being inconclusive and said that there did not appear to have been an adequate assessment of the situation to determine whether the sexualised behaviours of B were abnormal. Mr O said that sexualised behaviour in young children can be related to circumstances other than sexual abuse, including physical abuse, exposure to domestic violence and anxiety. Mr O said that the possibility that B has been sexually abused by the father or anyone else cannot be excluded. Given the extent of the investigation to this point, including involvement of police and other professionals, Mr O said that any further investigation will be unlikely to provide a clear understanding as to whether B has been sexually abused.
If the Court finds that B has been sexually abused by the father or another member of the paternal family, Mr O would not recommend future time with the father or members of the paternal family, even on a supervised basis.
Mr O said that his assessment raised concerns about the mother’s capacity as a parent. He said that if her allegations of family violence are accurate then that raises concern regarding her capacity to adequately protect the children from harm. If the allegations are unfounded then her actions are likely to have caused harm to the children in their disruption of the children’s relationship with the father and his family. Mr O said that her presentation and circumstances also raised concerns about her capacity to consistently meet the children’s needs. Similarly, the father’s account of himself suggested limitations to his capacity as a parent. Mr O opined that the children would benefit from the mother remaining involved with the T program. If orders are made that the children spend time with the father, Mr O said that the children would benefit from the father engaging with a T program or other similar program.
The Evidence of the Single Expert – Dr M
Dr M in a Forensic Psychiatrist with rooms in Suburb N, NSW. He was appointed pursuant to an order made on 2 December 2011 to provide a mental health assessment of the parties and to provide his opinion about matters arising under s 60CC(2) and (3).
For his report, which was provided under cover of a letter dated 6 June 2012, Dr M interviewed the father on 24 April 2012. He also interviewed the mother and the child B. Dr M noted that at one stage it had been suggested that he would also interview the paternal grandparents but that had not eventuated.
The father reported having suffered a back injury some 18 months prior to the interview, upon falling off a roof while cleaning gutters. He reported that he was restricted in that he could not sit or stand for long. The father gave contradictory answers to Dr M about his employment, saying that he was not working and that helping in the family business occupied all of his week. Dr M noted the father’s denial of physical violence to the mother or the children and the fact of an AVO and his conviction for an act of violence. Dr M noted that the father’s denial of being involved in legal proceedings is inconsistent with the facts and he found that the father could not give him a reliable history.
The father had been previously prescribed and had taken Duromine for six to seven months for weight loss. Duromine is a central nervous system stimulant used as an appetite suppressant. Dr M opined that it is capable of giving rise to a wide variety of psychiatric symptoms from agitation through to psychosis. It is a medication that can be abused. Dr M did not assert that the father had abused Duromine.
Dr M asked the father what went wrong with his marriage and the father responded to the effect that he had spoilt his wife too much, that he found it hard to say “no”; that he tried to make her happy so she could appreciate what he had given her. The father told Dr M that the parties separated because he would not cause a home he intended to buy to be bought in the sole name of the mother.
In relation to his ability to care for the children the father told Dr M that he worked from 4.00 pm to 12.00 midnight Tuesday to Friday and that his mother worked 8.00 am to 12.00 noon in the healthcare industry and that his father was constantly at home.
Dr M recorded no observable abnormalities in the father’s presentation apart from flat effect. The history given by the father was unreliable which meant that Dr M could not base an assessment on that history.
Dr M noted that the mother’s denial of taking certain drugs was inconsistent with previous representations made and was concerned that the mother too could not give him a reliable history.
Accepting the mother’s report of symptoms she has suffered, Dr M considered that she was suffering from heightened anxiety of significant degree in response to an extreme fear of the father. Assuming that his behaviour was as she reported to him, Dr M considered that her symptoms were the result of her being terrified by his behaviour. He noted that although her symptoms are extreme, that does not necessarily mean that the mother has a psychiatric illness.
Dr M was not called for cross-examination.
Submissions
The effect of the submissions made on behalf of the ICL was that the bare facts and the report of Dr M suggest there is a credible basis for the mother’s fears about the father. Whether those fears are proportionate to the circumstances or not, she is the primary carer and so her fears are relevant. The ICL would prefer an arrangement that maintains some physical contact between the children and the father. It would be hoped that as the children grow older and parties generate some trust in each other, better arrangements could be made. However, if the father is unwilling to have supervised time then that cannot happen.
In November 2011, prior to the commencement of submissions I asked counsel for the mother if a submission would be made by him that I could find that there is an unacceptable risk of sexual abuse by the paternal grandfather. He said he could not make that submission. Counsel ultimately conceded that he could not argue that there is an unacceptable risk for the children from the paternal grandfather. Although I raised the fact of that concession during the March 2013 hearing, it was not withdrawn.
The mother’s Case Outline Document included the following summary:
Any benefit to the children having a relationship with the father is outweighed by the need to protect the children from the risk of harm. There is evidence of serious family violence perpetrated by the father against the mother and which was observed by the children. There are also serious allegations of improper sexual conduct by the paternal grandfather towards one of the children.
The father requires the assistance of his parents to care for the children. The children have been cared for by their mother, with the support of [T Program] and other services, since August 2010. This has been a period of safety and security for the children and a change to the current care arrangement is likely to have a negative impact on the children.
The mother cannot effectively communicate with the father regarding long-term issues affecting the children and therefore an order for equal shared parental responsibility is not in the best interests of the children. The mother is the children’s primary carer and an order for sole parental responsibility should be made in favour of the mother. The orders proposed by the mother are the only orders that are reasonably practicable given the evidence before the Court.
It was submitted on behalf of the mother that the father poses an unacceptable risk to the children. The risk should be analysed on a subjective and objective basis. Firstly it was submitted that I could not rely upon the credit of the husband because he admitted under oath to lying to the court. Dr M on two occasions in his report referred to being lied to by the father in relation to his work history and in relation to a denial of being involved in matters legal. There were blanket denials where he contradicted himself later in his discussions with Dr M. He sought to mislead Dr M about his conviction for assault and in relation to his suicide attempt.
It was submitted on the basis of the Full Court decision in Johnson & Page that the question relates to whether the mother’s beliefs are genuinely held. It was submitted that Dr M confirmed that to be so. Secondly I am to determine whether the fears are based on reasonable grounds and that is the case here.
It was submitted that the father should and could have addressed the opinion of Dr M about his mental health. The father said he did not obtain evidence about his mental health because it would have cost him $10,000 and he did not have the money. The submission was that the Court is permitted to take judicial notice that the father’s GP could have provided a referral for a mental health assessment and plan under Medicare involving up to 6 consultations, without charge. Such a report together with subpoenaed notes of the consultations and assessments would then be available to the Court.
It was submitted on behalf of the father that there were unsatisfactory aspects of Dr M’s report. Despite acknowledging that the father told him that he had contact with someone called … in relation to his mental health, Dr M reported that “Mr [Deniz] denied any prior contact with any psychiatrist/psychologist”. Dr M should have noted that the father’s upset in relation to the sexual abuse allegations in relation to B was as to the effect on her of the interviews and examinations. I gather that the thrust of the submissions was either that the father’s distress reveals how unlikely any abuse involving him or that he is protective of his children. It was submitted that the comments by Dr M about the potential abuse of Duramine, a drug prescribed for the father wrongly linked the father with such abuse. The effect of the submission was that Dr M wrongly criticised the father when he was simply seeking to address his weight problem.
Although not revealed in her case earlier, the mother said during cross-examination that she has consulted a Psychiatrist, Dr V. She saw her on an irregular basis. In the November 2011 hearing the mother reported that she last spoke to Dr V about five or six weeks earlier. She was seeing a Psychologist, Ms W at the X Centre. She last saw her about 3 weeks or a month before the November 2011 hearing. The mother said that she was on no medication. Ms Y from T Program visited for one hour each week and the mother understood that she would be entitled to that assistance for a maximum of two years. The mother thought that she had received that assistance for more than six months as at the November 2011 hearing.
There was no updating evidence from the mother for the March 2013 hearing and therefore I take it that there had been no significant change to the circumstances about which the mother gave evidence in November 2011.
Dr M was charged with making a mental health assessment of the parents. Dr M found that in some aspects the mother was unreliable in giving her mental health history. In particular he noted that she denied any substance abuse and yet there was evidence that she had a bad reaction to marijuana (at least on one occasion). Nevertheless, Dr M found no evidence of current psychosis in the mother. He found her to be a highly anxious, particularly in respect of her children. The evidence of the panic attack (I presume during the choking incident experienced by B on 16 November 2011) suggested to Dr M that her concerns are clearly held by her. I take Dr M to say[9] that provided the mother’s allegations of violence by the father and conduct of the maternal grandmother are accurate, there is a rational basis for the mother’s anxiety.
[9] Page 21 of Dr M report.
Rational basis or not, Dr M notes the presence in the mother of heightened anxiety of inappropriate degree and the associated development of panic attacks. He assessed that psychiatric and psychological support would assist the mother.
Dr M noted that the father presented with flat effect but did not detect any other evidence of abnormality. He found the father to have no “symptomatology consistent with heightened anxiety of inappropriate degree” and no reactive state was diagnosed in him. However, Dr M found the father to be unreliable in giving his history, both as to his mental health and in relation to his interaction with the legal system, rendering any conclusions that might have been made based on that history of “questionable dubious value”. Dr M opined that the police record and documents relating to his health history suggest that the father has displayed aggression to others and himself. He has a history of substance abuse. Dr M observed that the father has in the past exhibited significant poor impulse control which has impacted on his wife and upon his children.
As to financial support, the evidence about the father’s support and capacity to provide support is confusing. There is his ambiguous employment status as noted by Dr M. He variously reported that he worked and did not work in his father’s business. The father funded supervision by F Care for many months at considerable cost. The father met some of the fees of Dr M. The bank statements attached to the father’s June 2012 affidavit confirm that the father received Newstart allowance from Centrelink during the period covered by those statements – January to June 2012. It is likely that both the supervision and expert’s expenses were met or subsidised by the paternal grandparents. However, the father told Dr M that the parties separated because he would not cause a home he intended to buy to be bought in the sole name of the mother. That begs the question of how the father could afford to buy a home. The background facts suggest that the mother and the children have lived in straightened circumstances since separation, needing the assistance of Centrelink benefits and help from government and non-government agencies.
The father sought to make something of his evidence that on each of the recent contact occasions the mother did not reject money he gave her. It may be that the mother has the need of funds to support the children and the father has some capacity to provide those funds.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
B is a girl and as at the conclusion of the trial, she was six years of age. C is a boy and is four years and eight months of age. The predominant influence on them has been their mother, if only because since August 2010 they have had little time with their father. The parents are both of Turkish extraction and they were both Muslim. It was the mother’s evidence that she has reconsidered her religious affiliations and since separation she now identifies as Christian.
Although a capacity for effective self protection is many years away, it is worth noting that the children attended day care and that B commenced primary school in 2012. Therefore, in addition to medical practitioners, the children have seen and will continue to be regularly seen by independent, compellable notifiers such as teachers and school counsellors.
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This does not apply.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I have addressed this elsewhere in these reasons. The children have been fed, clothed and loved. Apart from the allegations made about physical abuse, the children have not come to official attention in relation to neglect or ill-treatment. Notwithstanding that she has had assistance through the T Program and significant additional help from non-government agencies and from her own family, this reflects well on the mother. The fact that the mother has had the sense to seek out and cooperate with that assistance is a very positive thing.
As Mr O observed, on her own case, there have been times when the mother has not been able to protect the children or one of them, from the father. Knowing of his behaviour, over the years the mother has allowed the children to be in his care and to be exposed to his conduct, including violent conduct. She reported the assault on separation to be the most violent incident perpetrated by the father. With some exceptions and despite mixed messages on occasions the mother has largely resisted contact since that time.
It follows from the evidence that the father has not met his parenting obligations. The father has had difficulties in his own life and has struggled to put in place a way of life independent of his parents. He has dealt with weight issues and has had qualified mental health. In that regard he attempted suicide in 2006 and has had anger management problems. On his own evidence he has not been able to maintain paid employment. He has been violent to the mother and has exposed his children to that violence.
(3)(j) any family violence involving the child or a member of the child's family;
The father was convicted of assaulting the mother, being an assault occasioning actual bodily harm, as a result of events on 20 August 2010 and was placed on an 18 month bond. I am satisfied that the father was violent and controlling to the mother.
(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There was an Apprehended Violence Order made in 2006 for the protection of the mother. A further AVO was granted on 9 March 2011 protecting the mother and the children from the father. That order expired on 9 March 2012.
(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
In the circumstances, this criterion is not the major priority. In one sense, the mother’s proposal is likely to reduce the risk of further litigation in the short term as the mother would have no significant obligations in respect of the father. On the other hand, it is rarely appropriate to permanently close the door on the important relationship between children and a parent.
Given the tensions between the parents, an order that required them to interact in a regular and significant way is likely to result in problems of compliance and enforcement.
(3)(m) any other fact or circumstance that the court thinks is relevant.
Nothing comes to attention here.
Parental Responsibility
There will be an order that the mother have sole parental responsibility.
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.
Discussion
Section 61DA provides:
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, 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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) 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:
(a) 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
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Therefore, irrespective of the applications of the parties or lack thereof, in relation to parental responsibility, I must apply s 61DA because I am asked to make a parenting order.
In the context of this case, I must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them unless there are reasonable grounds to believe that the father or the mother have abused them or engaged in family violence. The father has been violent to the mother and so the presumption does not apply here.
Where the presumption does not apply, s 65D(1) requires the Court to make such order with respect to parental responsibility, and/or time to be spent with each of the parties as it “thinks proper”. What is proper is what is in the best interest of the child - determined by reference to s 60CC of the Act.
Here it is agreed that the mother will have sole parental responsibility. Neither parent seeks an order for consultation or advance notice from the mother to the father about matters going to parental responsibility. The ICL initially sought such orders but ultimately withdrew those proposals, as I understood it, as they would be impracticable.
The mother proposes that she provide certain information to the father about the children.
Conclusion
The presumption that the parents having equal shared parental responsibility would be in the children’s best interests, does not apply. There is no controversy between the parties about parental responsibility. The mother proposes and the father does not oppose, certain orders about information being provided to the father about medical and education matters. I will make the orders sought by the mother.
Living Arrangements
There will be no order for equal shared parental responsibility. Therefore s 65DAA does not apply.
As to what would be in the children’s best interests, there are the findings made above in respect of the s 60CC matters.
There is an issue as to whether the father’s relationship with the children has been meaningful. He loves the children and they love him. He wants to spend time with them and they wish to see him. Their wishes have little weight. However, the value of those relationships is to be weighed against the violence inflicted by the father on the mother and if only through her, on the children and the impact on the children of the mother’s fears about the father. I accept that there is potential for a meaningful relationship in the future.
I am not asked to find that the children or either of them were sexually abused by the paternal grandfather or that there is an unacceptable risk of that occurring in the future. The father was violent to the mother and at least indirectly, to the children. There are loving relationships between each of the parents and each of the children. The mother is neither capable nor willing to promote the relationships between the children and the father and for good reason. The father too would have difficulty in promoting the mother to the children. With the change of orders sought by the father, there is no longer the risk of the children being separated from the mother but the father’s proposals risk further exposure to violence from him and the impact on her parenting of an exacerbation of the mother’s anxiety. There is no evidence about the likely impact on the children of being physically excluded from the father into the indefinite future. I accept that could have serious consequences for them. Given the mother’s fears, there would be substantial practical impediments to the father’s proposal. The agreed position means that the mother is capable enough of providing for the needs of the children. The father has been assisted by his parents but he has not managed to facilitate a relationship with the children that does not excite anxiety in the mother. The father assaulted the mother and at least two AVOs were granted against him for the protection of the mother or the mother and the children.
In my view, the appropriate order is to exclude the father from physical contact with the children. On that basis the priority for limiting the risk of future proceedings is not great. One would hope that as the children mature and the mother is allowed to attend to them without the anxiety caused by interaction with the father, there will come a time when physical contact can be restored.
Conclusion
It is agreed that the children will live with the mother. The mother is afraid of the father and any time between the father and the children would cause great anxiety in her. There is a rational basis for the mother’s fears. If there was to be time between the children and the father, the mother needs that time to be professionally supervised. The father will not countenance any supervision. As a result there will be no orders for the children to spend physical time with the father.
There is a loving attachment between the father and the children. It is to be hoped that, with the link maintained through communications, at some time in the future, circumstances will support a resumption of time between the children, their father and members of the paternal family.
I certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan dated 17 April 2013.
Associate:
Date: 17 April 2013
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Expert Evidence
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Procedural Fairness
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