Deniz and Yilmaz

[2011] FamCA 909

FAMILY COURT OF AUSTRALIA

DENIZ & YILMAZ [2011] FamCA 909

FAMILY LAW – PARENTING – Adjournment application for the purposes of obtaining Chapter 15 expert evidence - Family Violence – Allegations of sexual abuse.

Family Law Act 1975 (Cth) Section 60CC

APPLICANT: FATHER Mr Deniz

RESPONDENT MOTHER: Ms Yilmaz

FILE NUMBER: PAC 4311 of 2010

DATE DELIVERED: 2 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Justice Loughnan

HEARING DATES: 1, 2 & 3 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT FATHER: Mr Greenaway

SOLICITOR FOR THE APPLICANT FATHER Barber Lawyers

COUNSEL FOR THE RESPONDENT MOTHER Mr Weaver

SOLICITOR FOR THE RESPONDENT MOTHER Adams & Partners Lawyers

COUNSEL FOR THE INDEPENDENT CHILD LAWYER Mr Fermanis

SOLICITOR FOR THE CHILD Gonzales & Co

Orders

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.

IT IS NOTED that publication of this judgment under the pseudonym Deniz & Yilmaz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4311 of 2010

Mr Deniz

Applicant

and

Ms Yilmaz

Respondent

REASONS FOR JUDGMENT

introduction

1. These are parenting proceedings involving two children, B aged 4 years and C aged 3 years.

2. At the conclusion of three days of trial the Independent Children’s Lawyer (ICL) applied for an adjournment of the hearing to allow the evidence of a Forensic Psychiatrist to be obtained.

applications

1. In the substantive proceedings the father seeks orders that he have sole parental responsibility for the children, that the children live with him and spend time with the mother including each alternate weekend and for one half of the school holidays.

2. The mother seeks orders that she have sole parental responsibility of the children, that the children live with her and spend no time with the father or the paternal grandparents.

3. In the course of oral submissions made on behalf of the ICL on 3 November 2011 an application was made for an adjournment of the hearing pending a report from a Chapter 15 expert. In the meantime, the ICL sought that the current interim arrangements continue but if practicable, they should be extended to permit the paternal grandparents to see the children with their son and that those occasions be of increased frequency to once a fortnight, albeit still on a supervised basis.

4. Through his counsel, the father opposed any adjournment of the proceedings. 

5. Through her counsel, although the mother does not consent to an adjournment she does not oppose an adjournment of the proceedings for the purpose of obtaining a report from a Chapter 15 expert, with the interim arrangements to continue in the meantime. Again, she would not consent to but will comply with, an order whereby the paternal grandparents also spent time with the children, if that time is supervised.

short history

1. The parents commenced cohabitating in around April 2004. The parties separated on 20 August 2010.

background evidence

1. The mother said that the father was violent toward her and the children throughout their relationship. She said he physically assaulted her numerous times and made verbal threats against her life and against the lives of their children. 

2. In 2006, the father attempted suicide. He overdosed on pain and other medication and was taken to hospital.

3. On 20 August 2010, the parties had an argument over the father being unable to find a clean shirt. The father assaulted the mother. The mother was taken to Suburb S Hospital for treatment. The father was charged with Assault Occasioning Actual Bodily Harm.  The parties separated at that time.  

4. In around September 2010, the mother said B began to make disclosures to her that suggested she had been sexually abused by the paternal grandfather.  She also witnessed sexualised behaviour in B.

5. In November 2010, the mother filed a Notice of Child Abuse or Family Violence. 

6. On 15 December 2010, orders were made providing that this matter be transferred to the Family Court and placed in the Magellan list (a list for cases involving allegations of child abuse or violence).

7. On 14 February 2011, the Magellan Report was released, identifying a risk of sexual harm. The matter had also been referred to the Joint Investigative Response Team (JIRT). 

8. On 4 March 2011, Family Consultant, Mr O released the family report. 

9. On 9 March 2011, a Final AVO was made by Suburb N Local Court to protect the mother and children from the father for a 12 month period. It is due to expire on 9 March 2012. The father was convicted on a charge of Assault Occasioning Actual Bodily Harm and was placed on a bond for 18 months.

10. The father said that he is currently living with his parents and that one of the rooms is available for the children to stay. He said that he is currently working as both a taxi driver and as a mobile phone repairer with his brother. As at the date of the hearing the father was not fully engaged in work and he and his parents said that he would likely commence working 5 days a week from about 4.00pm to about 12.00 midnight or 12.30 am.

11. Pursuant to an interim order the father spends time with the children on one day a month, supervised by a commercial agency.

12. The mother said she currently lives in a 3 bedroom unit with the children. The children each have their own room. She says no one else lives in the unit with them. She did not want to disclose her address or the preschool the children are attending as she fears for her safety and that of the children.

13. At the conclusion of three days of hearings, on 3 November 2011 I made the following orders:

1.That the current interim Orders be amended to provide that the paternal grandparents or either of them may attend on any supervised occasion whereby the father is to spend time with the children.

2.Judgment reserved, parties and their legal representatives are excused personal attendance on delivery of judgment.

THE EXPERT EVIDENCE

THE MAGELLAN REPORT

1. The Court has had the assistance of a Report prepared by the NSW Department of Human Services (Community Services). The report was distributed to the parties under cover of a letter from the Registrar of 14 February 2011.

2. The Report records 4 risk of harm reports in relation to the children.

3. 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. C, then 2 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.

4. On 18 November 2010 B disclosed that her paternal grandfather put a ‘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).

5. The report was accepted by the JIRT (t)eam and the child was interviewed on 1 December 2010. The risk of harm was substantiated given that B displayed sexualised behaviours and because the child protection history for both B and C involves 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 are at risk of harm if they have contact with their father and/or paternal family.

6. The report indicates that the Department had no intention of intervening or taking further action.

THE EVIDENCE OF THE FAMILY CONSULTANT

1. Mr O is a Family Consultant employed by the Family Court and was appointed as the single expert in these proceedings.

2. In cross-examination, Mr O said he was not aware of any mental health assessment that had been carried out on either party, at least not which was contained in the material he read. Mr O said he had not seen any material from a treating psychiatrist or psychologist. Mr O was presented with the current situation between the parties. That is, that the mother appears unable cope with the idea of any unsupervised time between the children and father or his parents, indefinitely. She had panic attacks and threw up during the court proceedings. She does not want the father to know where she lives or where the children will go to school. The father has difficulty with anger management and attempted suicide in 2006.  In those circumstances, Mr O said he believed the Court would be greatly assisted by a Chapter 15 expert report. 

3. At the time of his Child and Parents Issues Assessment in February 2011, Mr O said that the possibility of the children having a relationship with both parents did not seem to be completely excluded. He said that, although the parents had differences at the time, they appeared to be further apart now. 

ADJOURNMENT APPLICATION

SUBMISSIONS

1. Counsel for the ICL submitted that indefinite parenting orders could not be safely made without the Court having the benefit of evidence from a Chapter 15 expert. It was submitted that the effect of the competing proposals is to cut one of the parents out completely and the evidence is currently insufficient to make that decision. It was submitted that nothing will satisfy the mother in the short term that the children can have unsupervised time with their father.

2. In relation to the paternal grandparents having contact with the children, it was submitted for the ICL that the paternal grandparents play an integral part in the children’s lives. It was also submitted that the Court could not make a finding on the evidence with regard to the alleged sexual abuse of B by the paternal grandfather.

3. It was acknowledged that there could be financial problems with increasing contact visits between the father and children, considering that each supervised visit at F Care currently costs the father around $500 or $600. Counsel for the ICL raised the possibility of contact visits occurring at a contact centre but said that this could be a step backward given the considerable freedom and flexibility the father currently has in the time he spends with the children under the supervision of F Care.

4. The submissions on behalf of the father were to the effect that there should be no adjournment. It was submitted that a Chapter 15 expert could not assist with the issue of whether the mother’s allegations are born out. Such an expert could not help with factual matters. Further it was submitted that the fact that the mother had said that she could not comply with any order the Court might make, in particular an order for the father or his parents to have time with the children, was an end to the case. It was submitted that it is a fundamental obligation imposed on a custodial parent by the legislation that he or she must ensure a meaningful relationship between children and the other parent. It is argued that the children have been spending time with the father since July 2011 and they want a meaningful relationship with their father.

5. In the father’s view there should be roughly equal time. He accepted advice to the effect that an equal time arrangement will not be ordered for these children and, on that basis, proposed that the children should live mostly with him. It is submitted that a Chapter 15 expert will not help if the mother won’t comply with the ultimate orders. It is submitted that the only way forward is to impose the arrangement sought on behalf of the father and for the mother to see over time that the children return safely from their father’s house. It is submitted that an adjournment could involve a delay of 8 or more months and that would be unfair to the father. It was noted by counsel for the father that arranging additional supervised time at a contact centre would take several months given current waiting times.

6. The mother’s counsel submitted that the Court could make the orders the mother seeks and exclude the father from the lives of the children. However, no submissions were made in opposition to an adjournment. No explanation was offered as to why there is no evidence from the mother’s treating Psychologist, Psychiatrist nor, for that matter, from any member of her family.

Discussion

1. The notes of the visits supervised by F Care suggest that the mother was generally appropriate before and after the visits. She reminded the supervisors of the need for two supervisors and sought reassurance from them before and after the visits. However, on 16 October 2011 on returning to the mother’s home earlier than anticipated because the father was not at the appointed place, a supervisor reported that the mother became panicked and asked what had happened to the children.  The mother asked the supervisor to stay for a few minutes because she was not feeling well and was emotional.  B began to choke on her lunch and the mother ran to her screaming franticly.  The mother put her fingers down B’s throat and B was crying and screaming. B managed to cough up the food.  The mother and children seemed calm when the supervisor left.

2. The mother did not reveal the extent of the mental health assistance she receives in her evidence in chief. The mother said during cross-examination that she sees that Psychiatrist on an irregular basis. She last spoke to her about 5 or 6 weeks ago. She also sees a Psychologist at the X Centre. She last saw her about 4 weeks ago. The mother said that she is on no medication. Ms Y from Z Services visits for one hour each week and the mother understands that she would be entitled to that assistance for a maximum of 2 years. She thinks she has received that assistance for more than 6 months to date.

3. The mother’s allegations of violence by the father are corroborated in that a court found the father guilty of assaulting her. The father conceded that he lied on oath in these proceedings. He sought to minimise or understate the events of the past including an attempt to kill himself in 2006 and the violent assault on the mother in August 2010. The father was advised by his Parole Officer to undertake some courses. His capacity to safely care for the children unsupervised is largely untested. The pattern during the relationship had the mother caring for the children during the week and often the paternal grandparents having them on the weekend.

4. The children are very young and are not capable of self protection.

5. The mother’s presentation in Court was remarkable and concerning. She presented as being beside herself with anxiety and was apparently overcome during much of her oral evidence. She shook, breathed heavily and mumbled her evidence with her head in her hands. She was visibly anxious even when not giving evidence. There is evidence that she requires support in parenting the children. She has weekly support from Z Services and the events observed by the F Care supervisor on 16 October 2011 were objectively concerning to the lay observer and warrant scrutiny by an expert. There is a suggestion that her capacity to parent may be compromised – for whatever reason.

6. The Court is charged with the responsibility of making an order in the best interests of two vulnerable children. The case was prepared for final hearing with the single expert being a Family Consultant. When the single expert saw the parties in February/March 2011, he was told that there was a prospect of a settlement between the mother on one side and the father and his parents, on the other. He observed what he took to be conciliatory gestures at the time of his interviews with the parties. In those circumstances there can be no criticism of Mr O. However, since that time the parties have become polarised to the point where the practical effect of any orders made is likely to be that one or other parent will be entirely excluded from the lives of the children.

7. In those circumstances, it is submitted on behalf of the children that a mental health assessment is required. The Family Consultant agrees.

8. Among the matters I am required to address are several of the s 60CC factors in respect of which a mental health assessment of the parties is or could be relevant. Included among those factors are s 60CC(2)(a) and (b) & (3)(b), (c), (d), (f), (i) and (j)

9. I am very sympathetic to the submission made on behalf of the father that there should be no adjournment. The father’s relationship with his children has been placed on hold since August 2010 and his parents have been effectively excluded from their lives. The adjournment will necessarily involve a considerable delay in identifying a settled parenting arrangement for the children. Nevertheless, in my view mental health assessments of the parties and the children are required and it would be potentially dangerous to make final orders without those assessments. I note that the mental health of the parents was included in the list of issues to be determined (presumably by me) according to the father’s counsel. That evidence can only be provided by a suitably qualified expert.

10. To his great credit, the father said that, should an order be made for the appointment of a Chapter 15 expert, he would find the money to pay for the cost.  Counsel for the ICL said that a Legal Aid grant could cover a portion of the cost but that the difference would be around $7,000 or $8,000.    

11. Without taking away from the work of the Family Consultant, the issue of the mental health of the parties and their children cannot be viewed in isolation. I will order that the proceedings will be adjourned pending the provision of a report from a Chapter 15 expert.

_____________________________________________________________________

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of The Honourable Justice Loughnan delivered on 2 December 2011.

Associate:     Jay McMullen

Date:              2 December 2011