ESFARA & WOLLENS
[2016] FamCA 2
•13 January 2016
FAMILY COURT OF AUSTRALIA
| ESFARA & WOLLENS | [2016] FamCA 2 |
| FAMILY LAW – CHILDREN – Parenting orders - Application by father to spend time with and communicate with children – Allegations of family violence – Father suffers from mental illness – Whether children at risk in unsupervised care of the father – Orders that children spend no time with the father and there be no communication. |
FAMILY LAW – CHILDREN – Parenting orders – Consent Orders that children live with the mother – Consent orders that the mother be permitted to change the children’s names.
FAMILY LAW – CHILDREN – Parenting orders – injunctions about the father not approaching the mother or children.
Family Law Act 1975 (Cth) s 60CC
| Mauldera & Orbel (2014) FLC 93-602 | ||
| APPLICANT: | Mr Esfara | |
| RESPONDENT: | Ms Wollens |
| INDEPENDENT CHILDREN’S LAWYER: | Fitzgerald & Browne |
| FILE NUMBER: | HBC | 622 | of | 2012 |
| DATE DELIVERED: | 13 January 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 26, 27, 28, 29 & 30 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Patrick Fitzgerald |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Commission of Tasmania |
| COUNSEL FOR THE RESPONDENT: | Mrs MaryAnn Ryan |
| SOLICITOR FOR THE RESPONDENT: | Butler McIntyre & Butler |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Tony FitzGerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | FitzGerald & Browne |
Orders
All previous parenting orders in relation to Y Asfara (sometimes known as ‘H Asfara’) born … 2008 and M Asfara born … 2010 (‘the children’) are discharged.
Ms Wollens (‘the mother’) shall have sole parental responsibility for the children, subject to;
a.BY CONSENT the mother shall have the sole responsibility to amend and/or change Y’s birth certificate and birth registration (registered as ‘H Asfara’) to show his full name as ‘Y H Asfara’ ; and
b.Such sole parental responsibility does not empower her to otherwise change the children’s registered names without the written consent of the father or an order of a Court exercising jurisdiction pursuant to the Family Law Act 1975 (Cth) (‘the Act’).
BY CONSENT the children shall live with the mother.
Mr Asfara (‘the father’) shall spend no time with nor shall he communicate with the children.
The father is restrained from approaching within fifty (50) metres of:-
(a)any place where the mother and children reside or are staying;
(b)any place of employment of the mother; and
(c)any school or sporting venue where the children are or are likely to be present.
BY CONSENT the parents shall generally refer to their eldest child using ‘Y’ as his first name and will encourage others to do likewise.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all Exhibits remain on the court file.
Leave is given for the Independent Children's Lawyer to provide a copy of these orders and underlying reasons to Dr E.
All extant applications (other than applications for costs) be dismissed.
Any application for costs shall be made in accordance with the Family Law Rules.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Esfara & Wollens and 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 HOBART |
FILE NUMBER: HBC 622 of 2012
| Mr Asfara |
Applicant
And
| Ms Wollens |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
Mr Asfara (‘the father’) and Ms Wollens (‘the mother’) are the parents of Y (born in 2008) and M (born in 2010) (individually referred to as ‘Y’ or ‘M’ and jointly as ‘the children’). There is a serious issue between the parents as to whether the father should spend any time or have any communication with the children. There is otherwise consensus that the children should continue to live in the primary care of the mother.
The reason for the dispute arises out of the father’s mental health. Since at least 2002 the father has been diagnosed with paranoid schizophrenia. One of the factors associated with this illness in its impact upon the father is that he has at times been violent.
Incidents of violent behaviour by the father escalated from 2002 to a most serious event which occurred in 2004. On that date the father stabbed and caused serious injuries to his brother, R. This occurred in their parent’s home late at night and when R was asleep in his bed. The father was initially charged with attempted murder of his brother, although this charge was subsequently reduced to a charge of inflicting grievous bodily harm on R. In 2005 the father was found not guilty of inflicting grievous bodily harm by reason of his insanity. A supervision order was made in the Supreme Court of Tasmania under the Criminal Justice (Mental Impairment) Act 1996 (Tas). That supervision order remains in force, although the father has, in recent years, applied for its dismissal. In the course of these parenting proceedings he says (and I accept) that he will defer a further application for revocation of that supervision order for a period 12 or 18 months. The father’s treating psychiatrist said that he supported such revocation application.
In early 2008 the father met the mother and soon after that meeting the mother became pregnant with Y, who was born about 12 weeks premature. Consequently, Y spent time in the neo natal unit in X Hospital.
The parties second child, M, was born about two years later in 2010.
The parties had a difficult and highly conflicted relationship from the commencement in early 2008 and they separated in late 2011.
The father claims that his mental illness is now managed and treated such that he does not pose an unacceptable risk to the children in spending supervised time with them.
The father consents to orders that the children reside with the mother. He also consents to an order that the mother have sole parental responsibility for the children, but wants involvement in relation to the decision-making and access to their medical records and the like.
The father seeks orders that he spend time with the children on a supervised basis and specific orders in relation to communication. In addition he seeks an order that the children be placed on a Watch List and that neither party have permission to apply for the issue of passports for the children, without the consent of the other party or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth) (‘the Act’).
He seeks an order that the mother not remove the place of residence of the children from the greater Hobart area. Given the findings, discussion and outcome of the overall dispute, such an order is not in the children’s best interest.
The mother seeks orders for the sole residence and sole parental responsibility of the children. In addition she seeks an order that the father spend no time and has no communication with the children. The mother seeks an injunction to restrain the father from approaching her and the children.
Both parties agree that the registered first name of Y be changed to reflect the first name that is commonly used for him.
In this proceeding an Independent Children’s Lawyer had been appointed and at the conclusion of the hearing he generally supported the orders the mother sought; that is that the father should not spend time or communicate with the children.
In her final submissions, counsel for the mother asked (rhetorically) what chance the mother stood. The mother had been born in a country in the Horn of Africa and had spent many years in a refugee camp in Somalia before being relocated to Australia at the age of 15. Four years later she met the father in whom she saw a tall, dark and handsome charismatic man. What she did not know and was not told by his family or medical practitioners was that the father suffered from paranoid schizophrenia and had exhibited violence to others, including an act of extreme violence. This very young mother was not informed of that illness and history in a timely manner. She ought to have known and have been told.
Displayed in this proceeding was a systemic failure to properly inform and warn the mother (and consequently the children) of the father’s serious and dangerous mental health illness. This is not a criticism of the individuals involved but it is a strong criticism of the system that seems wholly focused on the privacy of the patient to the detriment of some of those close to him. In this case the father was the subject of a supervision order for the very reason that the father was considered ‘likely to endanger another person or other persons’[1]. People are generally entitled to their privacy, provided always that such notion does not extend so far as to leave family and community, especially children, at risk in the ignorance of such danger.
[1]Section 35 Criminal Justice (Mental Impairment) Act 1999 (Tas)
The mother asserted (and I accept) that she is terrified of the father and fears that the children are at risk of serious harm or worse in the care of the father, whether supervised or not.
The father’s case is that his mental illness is treated and controlled by medication. He says he is compliant with his medication and as such should spend supervised time with the children.
THE ISSUES
The primary issues for determination are whether the father should spend any time, including, supervised time, or have communication with the children. This fell into three sub issues, namely:-
(a)whether the children are exposed to an unacceptable risk of physical and/or psychological harm in the supervised care of the father into the future;
(b)the impact of the children spending that supervised time with the father on the emotional and psychological health of the mother and consequently her ability to parent the children. Particularly in circumstance where the mother is a good and effective parent and the father is not a serious candidate for having unsupervised care of the children; and
(c)consequently, what orders as to time and/or communication (if any) should be made.
BACKGROUND
The parties each tendered case outlines and accepted the chronology provided by the Independent Children’s Lawyer.[2] The father added some other relevant dates in his chronology.[3] The mother set out her chronology in her case outline.[4]
[2] Exhibit ICL1 pages 3, 4 & 5.
[3] Exhibit F1 pages 4, 5 & 6.
[4] Exhibit M1 pages 13, 14, 15 & 16.
The father was born in 1982 and is currently aged 33 years. He describes his occupation as an S Organisation employee. The mother was born in 1988 and is presently aged 27. She describes her occupation as ‘home duties’.
There are no issues of physical health in relation to either the mother or father. There are significant issues as to the father’s mental health.
In terms of the mother’s mental health, I accept the assessment of Dr L that she has Post-Traumatic Stress Disorder. This condition was exacerbated by these proceedings and her genuine fears in regard to the welfare of herself and the children, given the history and her experience of violence and violent outbursts by the father.
The mother was born in the Horn of Africa and moved to Australia at the age of 15 and she has lived in Australia since that time. In the context of that history at the age of six months the mother was given to the care of her grandmother, who raised her. She did not then meet her biological mother until the mother was aged 12. The main male influence in the mother’s early years was an uncle, with whom she was very close and from whom she sought advice and guidance.
The mother’s father served in the Army and during the course of that military service he was shot and injured. He departed from the Army and as a consequence he became exposed to the risk of execution for desertion. His family, including the mother, fled their country of origin as refugees. They lived in a refugee camp in Somalia for seven years, from the time the mother was aged about eight years. The mother and her family were resettled in Australia when the mother was aged 15.
During her time in Somalia the mother suffered from food shortages. She witnessed a great deal of violence and fighting and she saw many dead bodies. She frankly acknowledges that she was not herself a direct victim of violence.[5]
[5] Exhibit ICL4 report of single expert at page 3 (personal history).
In terms of the father’s history in August 2001 the father was charged with a number of offences relating to destroying property, being drunk and disorderly, being in possession of a prohibited substance, threatening police, refusing to provide a name and address and resist police officers. The matters were dealt with without conviction and were adjourned on an undertaking that the father be of good behaviour for a period of 18 months.
On 19 November 2001, an interim restraint order was made against the father by the paternal grandmother and included a provision that he not enter their then family home. This order remained in place until January 2002.
In November 2002 the father was admitted to X Hospital for psychiatric care over about three months. At that time, he was formally diagnosed with schizophrenia. In February 2003, he was re-admitted to X Hospital for further psychiatric care.
A local Mental Health Tribunal made a Continuing Care Order in respect of the father in November 2002 and that order remained in place until May 2003.
In late 2003 further symptoms of the father’s mental illness became apparent. He moved to Western Australia, where he was involuntarily admitted for two weeks to hospital for psychiatric care. He later returned to Tasmania and in September 2003 he was re-admitted to X Hospital for psychiatric care. The local Mental Health Tribunal made a further Continuing Care Order in respect of the father in September 2003. This Order was initially in force until 1 December 2003, and later extended to 1 March 2004. The father was involuntarily re-admitted to X Hospital for psychiatric care for three weeks in October 2003 and for one week in November 2003.
Sometime between 12 January 2004 and 30 January 2004, it is reported by police that the father assaulted a person in the street in Hobart and the father was brought to Accident and Emergency at X Hospital. He was assessed to be paranoid, incoherent and aggressive with auditory hallucinations. He was again involuntarily admitted to X Hospital.
In February 2004 the father travelled to Sydney and was involuntarily admitted to a psychiatric hospital for a three-week period. He was discharged and then re-admitted to that Sydney hospital about one week later. The father then returned to Tasmania.
A major event occurred in Tasmania in April 2004 while the father was living at his parents’ home. The father stabbed R whilst his brother was sleeping. The father was taken to X Hospital and was involuntarily admitted. He was subsequently transferred to Z Psychiatric Clinic.
The father was eventually charged with causing grievous bodily harm. In February 2005, the father was found not guilty of grievous bodily harm by reason of insanity and the Tasmanian Supreme Court made the supervision order, referred to earlier in these reasons. The father spent time in psychiatric care and eventually, in September 2005, was transferred to X Hospital from Z Psychiatric Clinic and it was noted that he was ‘adhering well to his program’.
Since July 2004, the father has been managed by Community Forensic Mental Health Services, which is part of the Department of Health and Human Services.
In early 2008, the parties met and commenced a relationship. The mother at that time was aged 19 years. Soon after their relationship commenced, the mother fell pregnant with Y who was born prematurely at 28 weeks.
In September 2008, the father was admitted to the W Clinic (a psychiatric hospital) for four days and was subsequently readmitted in October 2008.
As a consequence of his early birth, Y was hospitalised for a number of months. In October 2008, whilst in hospital, there was a confrontation at the hospital between the father (who was holding Y), the mother and hospital staff. The father refused to return the child to either the mother or hospital staff and the father expressed delusional beliefs that the mother was unfaithful to him. The father allegedly threatened Y, the father denied making any threats to the child.
On 30 October 2008, a Police and Family Violence Order was made against the father protecting the mother and Y. That order was downgraded to ‘keep the peace’ with an order not to approach the child whilst he was in X Hospital. That order was to remain in place until November 2009.
The mother asserted that in November 2008 she first became aware that the father had some mental health issues. The father was admitted involuntarily to the W Clinic from November 2008 to March 2009.
In December 2008, the mother consulted with the Family Violence Support Services and this community assistance continued over the next six years. In January 2009, the father began spending supervised time with Y in the W Clinic with Child Protective Services’ approval.
The parties married in mid-2009.
In June 2009, the father was further admitted to the W Clinic where he remained until about November 2009. On 9 July 2009, the paternal grandmother reported concerns to Forensic Mental Health Services regarding the mental health of the father.
In July 2010, the mother contacted the Family Violence Support Services complaining of interaction with the father mainly relating to financial issues, but also to her claims of emotional abuse.
In late 2009 early 2010, the parents re-commenced cohabitation and soon afterwards the mother fell pregnant with M. He was born in late 2010.
In August 2011, there were a number of events claimed by the mother to be family violence. On 11 August 2011, the mother contacted the Family Violence Support Service and indicated things were ‘okay’. On 22 August she informed the Service things may be tough but they were generally under control. On about 29 August 2011, the mother contacted the Family Violence Service saying she wanted to end her relationship with the father.
In August 2011, the mother alleged that the father was stalking her by following her and was making harassing telephone calls. She said that he was continuously verbally abusing her and he held a deluded belief that she was having sex with other men.[6]
[6] Ibid paragraph 67 & 68.
There was an event on 27 and/or 28 August 2011 in which Tasmania Police were involved. Mutual Police Family Violence Orders were made. On 31 August 2011, the mother advised the Family Violence Support Services she was intending to revoke the existing ‘keep the peace’ domestic violence order as the mother said she wished to work through problems with the father.
In her affidavit material, the mother said that in 2011 the father assaulted her and had non-consensual sex with her.[7] The mother said the father had inflicted other physical and sexual assaults on her.[8]
[7] At paragraph 76 of the mother’s trial affidavit filed and sworn 17 August 2015.
[8] Ibid paragraph 72 to 79.
In her trial affidavit[9], the mother said she moved into a women’s shelter on 28 August 2011. In October 2011 she decided to give their relationship another opportunity and the parties briefly lived together. That endeavour was unsuccessful and the mother moved back to the shelter in November 2011. The mother asserted that there was a final separation in August or November 2011.
[9] Ibid paragraph 70.
On 10 December 2011 the father alleged to Tasmania Police that the mother and children were being held captive and that they were being drugged.[10] The Police IDM Report states:-
At about 21:00hrs on 9/12/11 police attended [redacted], North Hobart in relation to [the father] claiming his wife [the mother] was missing and was being held captive. On arrival the residence was unattended and [police] made contact with [the father]. He stated that he was now at the units at [redacted] where he believed his wife and kids were drugged and being held against her wishes.
[10] Exhibit ICL2 page 52.
The Police made enquiries and found no evidence of any such events or behaviour. The mother denied such occurrences and the concerns expressed by the father were likely to have been his delusional thoughts.
On 3 February 2012, the mother moved from the shelter to new independent accommodation, which was said to be a ‘men free’ zone. Unfortunately, for the mother the electricity had not been connected and that connection took some days. The mother and the children needed accommodation with power, the mother considered or stayed in a motel but later said she went to the father’s home. Her affidavit evidence as to precise dates seems a little confused.[11]
[11] Mother’s trial affidavit paragraphs 82 to 92.
The mother spoke or had spoken to the father’s support worker around that time, who informed her that the father was doing well. As such the mother arranged to spend one or two nights at the father’s home until the electricity was connected. She believed she and the children would be safe.
The mother said she cleaned the father’s home on 4 February 2012 and then went to her new home, after warning the father that he could not attend. Later that day, and contrary to the mother’s request, the father attended at the mother’s new home and made allegations that his brother (R) was at the house. That claim was a delusional belief and the mother initially convinced the father of that circumstance. The mother went with the father to a public place. The father said it went well. The mother said it was difficult and that the father was tickling her aggressively. She asked him to stop but that did not occur until a member of the public intervened.
As the power for her home remained unconnected, the mother decided to stay at the father’s home a second night. She and the children were to sleep in a separate bedroom. The mother asserted that the father was aggressive, harassing and abusive. She said at 4.00 am the father tried to enter the locked door of the bedroom and eventually he forced a door open and demanded the mother and children leave the house. In doing, so the mother said the father assaulted and threatened her and that he was violent or rough with Y.
The Police attended the home and the father was removed from it. He was charged with a number of offences. The mother said she suffered some injuries and police found what they believed marijuana at the home. That material was not subsequently identified as marijuana. The Police did not proceed with the charges against the father. On 5 February 2012, an interim Family Violence Order was made to offer protection to the mother and children. This order was later made a final order extended to June 2013.
Since early February 2012, the mother has had no direct contact with the father and he has not spent any time or had direct communication with the children.
The father was admitted to W Clinic for seven months from late in February 2012.
The parties’ marriage was dissolved in February 2013.
The father commenced these proceedings in December 2013 in the then Federal Magistrates Court. In his initial application, the father sought paternity testing of the children. That occurred and the testing established that he was the children’s father. He then sought specific parenting orders.
These proceedings were transferred from the Federal Circuit Court to the Family Court on 2 June 2014. An Independent Children’s Lawyer was appointed by order of the Family Court on 25 June 2014.
The case outlines of each of the parties and the Independent Children’s Lawyer were tendered into evidence, not as to the facts contained therein (except where there is a consistent statement in their chronologies) but as an indication of the orders that each of the parties sought.
The lawyers for the parties prepared a tender bundle of documents and that three-volume bundle was tendered in evidence[12].
[12] Exhibit ICL 2.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
THE LAW
The provisions of the Act which deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The torturous terminology of the statutory provisions is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests.
That section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii) the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Where the alleged facts in a particular case may enable a finding that children are at risk of violence, abuse or neglect, the Court in determining what orders should be made needs to balance the risk to the child or children against the importance of retaining parental ties. What is an unacceptable risk?
In Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038 Tree J gave consideration to the notion of unacceptable risk and said:-
51.It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
52.In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:
20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke[1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22.In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25.Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
THE EVIDENCE
The father
The father gave evidence in accordance with his two affidavits: the first sworn 13 February 2015 and filed 25 February 2015 (‘trial affidavit’) and his affidavit sworn 7 August 2015 and filed 11 August 2015 (‘reply affidavit’).
The father gave oral evidence as to his criminal history.[13] He denied that he had used any marijuana since about 2004. He reflected on this evidence later in his evidence and said that it was probably in Western Australia in about August/September 2003. There was no evidence that the father used marijuana after 2004.
[13] Exhibit ICL2, volume 1 pages 39 to 42.
The father asserted that during the events of 27 or 28 August 2011 the mother was intoxicated despite the observations of the police officers which were:-[14]
Neither party appeared under the influence of alcohol.
[14] Ibid page 64.
As such, I reject that evidence of the father.
The father said that he had never asserted that the mother was a ‘whore’ or a ‘slut’. He said that the mother had in fact taunted him that she had had sex with his brother.
In giving evidence, the father rarely missed an opportunity to blame the mother for the tension and difficulties in the relationship. When asked a question about violence perpetrated by him, he said there was violence but it was by the mother against him. He said at times he had good recollections of events but at other times said he could not recall, his memory seems sporadic at best.
He disputed much of the evidence of the mother.
The father was cross-examined by counsel for the mother. The quality and reliability of his evidence was troubling. At times he prevaricated or otherwise avoided answering questions, he made statements, which were inconsistent with earlier statements and at times he struggled to contain himself. He often gave rambling, non-responsive answers.
In many ways the father’s mental illness to which the experts provided reports was on display during the course of his evidence and in terms of his affect. Dr A’s description of him in 2004[15] best described that which I observed of the father, that is:-
… He has a markedly flattened affect (i.e. lack of emotionality). He is civil and co-operative, but there is an element of distain manner.
[15] Ibid page 2.
It would be too time consuming to deal with all of the examples of his poor and inadequate evidence. However, I will set out some of them.
The father denied that he was over-emotional and did not accept that he was emotional at all. Yet, there was a concerning event at the hospital after the birth of their child Y, where the father was holding the child and refused to return the child into the humidicrib, despite requests that he do so. He was clearly emotional at that time.
The father was cross-examined about sleepwalking. He initially said he has no recollection of sleep walking and then said he had some recollections of it but denied inappropriate actions. He was cross-examined about having a hot shower and urinating on an electrical device on one occasion. It was apparent from his evidence that he was endeavouring to understate and minimise his sleepwalking. Yet the father asserted, as an explanation for the assault on his brother, that he was sleepwalking.[16] Dr A considered that explanation implausible.
[16] Exhibit ICL2 volume 1, pages 1-4 report Dr A 8 July 2004.
The father disassociated himself from the comments allegedly made by him and recorded in Dr A’s report. I am troubled by that evidence of the father.
The father’s recollection about the incident involving his brother also seemed to change from the time he had the discussion with Dr A to a discussion with a health worker at that hospital. At that time, and apparently at other times, he asserted that the affect arose out of ‘dodgy speed’. He said at that time:-
It was not pre-meditated.
It was all about dodgy speed with [his brother]. It came from [Town I].
I remember thinking, how can it be that colour. Is there something wrong with it.
It was all a tragedy.
There was no anger.
It was sleep walking, but my eyes were open.
His story about the attack changed over a period of time.
The father has a history of drug and alcohol abuse at least up to the events of April 2004. The father endeavoured to minimise these and denied the use of drugs, where he had made concessions of such use to experts.
The father denied the use of LSD[17] and the use of heroin. Initially he said he ceased using amphetamines before the stabbing of his brother and at one stage declined to concede that amphetamines were involved in that event.
[17] Lysergic Acid Diethylamide.
He would only concede facts, if he would concede them at all, if a document was produced and even then he would offer an explanation such as that regarding the threats to Y at the hospital. The father believed that X Hospital was, at that time, biased in favour the mother.
When questioned about losing patience with the children the father said he was always considerate. He denied that his thought disorder and lack of compliance, up to 2012, had any adverse impact upon him and he continually downplayed his symptoms.
The father perceived the mother’s reluctance to leave the infant children with him as controlling when in fact, even on his evidence; it would appear that such reluctance amounted to appropriately protective steps taken by the mother.
The father complained that the mother attended psychiatric appointments with him and said that this was ‘controlling behaviour’ and then he added ‘to receive information … against me’. Given the history that the father and his family failed to effectively inform the mother (and very young mother) of the father’s illness and history of violence, his assertion could at best be described as obtuse and likely fabricated. Given his psychiatric history and his violent behaviour the father’s lack of insight is concerning.
The father was cross-examined in relation to the mother’s complaints of him controlling her by telephoning her to find out where she was and what she was doing. When asked about telephoning her when she went to the shops he deflected, he prevaricated and he would not answer directly.
The reports and documents, (including the order he sought for DNA testing at the commencement of these proceedings) have a constant theme of the father complaining about the mother’s alleged infidelity and the father’s delusional belief that the mother was intimate with his brother. Given my findings of fact, I accept the conclusion of Dr L that:-[18]
[The father] appears to lack any appreciation of the impact of his attitudes and behaviour in the relationship, and that there were enduring consequences for [the mother], that causes me [Dr [L]] some concern. …
[18] Exhibit ICL 3 Report of Dr L dated 15 October 2015 at page 6.
That delusional view continues. The father was offered the opportunity to retract from that assertion and did not do so.
Even the commencement of the proceedings in the Federal Circuit Court by the father was by way of an application to have the children paternity tested to establish whether they were his children. The father has a deluded view that the mother is sexually promiscuous and has been sexually promiscuous with a number of men. Given the violence against both the mother and the father’s brother, this is a dangerous and powerful delusion, which remains in the father’s mind.
The father denies he was or is jealous. I do not believe him.
The father was cross-examined in relation to the mother’s allegations of rape and him being sexually and inappropriately sexually demanding. One of his answers was he was ‘never convicted’. His answers were at times contradictory. He said he was a modest man and that intimate relationships were rare. He denied he pressured the mother for sex and then said she was unable to have intercourse with him because of discomfort or pain. It was implicit in that regard that he was asking the mother for sex but being denied. His evidence was unconvincing and unlikely. It seemed to be framed to give an answer to facilitate the outcome he determined rather than any endeavour to be frank in his evidence to the Court.
The father was cross-examined in respect of his relationship with his brother. He minimised how poor that relationship was and said he had sent a letter of apology to his brother. However, there was evidence that his relationship with his brother was still problematic in 2012.[19]
[19] Exhibit ICL2 volume 2 page 73 and 82.
In the notes regarding his involuntary admission in February 2012 the medical records note the following:-[20]
During psychiatric review today at … With Dr [E] and myself (Ms [C]) … [The father] presented with thought disorder and showed significant signs of mental state deterioration, i.e. delusional thinking. [The father] refused to consider options presented by Dr [E] i.e. admission to respite, DOP or [unreadable] and became physically and verbally threatening towards Dr [E].
[20] Exhibit ICL2 volume 1 page 121.
There was an application for seclusion on 12 February 2012 where the father was noted as becoming increasingly agitated, including making threats towards nursing staff.[21] It is significant that the notes from the Department of Health and Human Services are markedly different to the version given in evidence by the father. The document reported on 6 January 2009:-[22]
Dr … alerted [the father] to something he had said in the lead up to admission, which was “I can go to the hospital and strangle [[Y]] if I like”. [The father] minimised it saying “It was more fatherly thing, I said ‘if anyone else touches [[Y]] I will’ … and he trailed off”.
[21] Ibid page 125.
[22] Exhibit ICL2 volume 2 page 127.
This evidence was inconsistent with the version that the father gave. I prefer the written record as an accurate representation of what was said and I am satisfied that a threat was made by the father to strangle Y shortly after the birth of that child.
The untruthful approach adopted by the father in relation to this is also set out in the same Exhibit at page 132. The father challenged the accuracy of the note taker.
The father’s refusal to acknowledge any fault was troubling. His legal practitioner made some concessions on his behalf[23] and the father disassociated himself from those concessions. The father does not concede that any of the Family Violence Orders made against him had any basis whatsoever. The evidence of Dr L was that if the father does not comply with his medication, even for a short period of time, he becomes a risk.
[23] Exhibit F1 at page 9.
Dr L gave evidence as to the PCL-R test of the father[24] where the father was found to have ‘moderate level of psychopathic traits’. I also accept the evidence of Dr L that the father must have knowledge of what he did and given the findings of fact I am satisfied that he was in his absolute denials being untruthful. I find that the father has a chronic history of mental illness and I consequently accept the evidence of Dr L that he will require close medical supervision for many years.
[24] Exhibit ICL2 volume 2 page 57.
The father was re-examined at the end of his cross-examination and there was a significant contrast between the answers he gave in cross-examination and re-examination. He was asked why he did not call his brother to give evidence. His brother lived in Tasmania and he said his brother had ‘issues’. The father’s response to that question was non-responsive.
I am not satisfied that there is any satisfactory reason why the brother was not called to give evidence. I can only assess that the evidence the father’s brother would have provided would not have been of assistance to the father.
The father said that his letter of 2005 resolved his circumstances with his brother. This was not true.
The evidence of the paternal grandmother endeavouring to bring about a reconciliation between the brothers when the father was in hospital in 2012, and the father’s reluctance to engage at that time, and the description of their relationship in the W Clinic report of 2008 is indicative that the relationship had not repaired itself.
The evidence given by the father lacked consistency, lacked responsiveness and was at times inherently implausible. I do not accept him as being a frank witness.
I have accordingly treated the father’s evidence as unreliable.
The mother
The mother provided evidence contained in her affidavit sworn and filed 17 August 2015. The mother was assisted in preparing that affidavit as her use of the English language was that which she has developed since her arrival in Australia in 2003, only some 12 years ago.
The mother gave frank and direct evidence including in relation to matters of alleged assault, sexual abuse and intimidation. She often struggled for words and from time to time struggled to understand the nuances of the questions asked of her. She was open and clear in her evidence and said that she would abide any order that the Court made and expressed trust in the determination of the Court.
She gave evidence that she had not engaged in any drug culture and did not understand the difference between many of the drugs referred to, from her perception heroin and marijuana were just illegal drugs and she did not distinguish between them. She said she would not know the smell of marijuana.
She was criticised by counsel for the father, in cross-examination, for asserting that the father had used marijuana. Clearly the mother had been told of marijuana in the father’s home during the events of 4 and 5 February 2012. That criticism of the mother was unwarranted.
It is further clear that the mother was not taken into the confidence of the doctors or medical professions who were assisting the father. The father’s family provided her at times with any information, and at other times, insufficient information. The father’s family were unhappy with his relationship with the mother and because of cultural and other differences there was no effective communication between them.
The mother first limited information about the father’s need for drugs to control a mental illness arose in October/November 2008 after the birth of Y. This was in circumstances where the father was clearly acting in a threatening and bizarre manner and was he was causing concern to the staff at the neo natal unit. He had made a threat to harm the child to which I referred earlier.
The mother had a strong belief that once she was married or in a relationship, it was monogamous and permanent. As such she actively sought to make the relationship work, despite great adversity and limited information. She publically supported her husband, such as with his desire to move to New South Wales in late 2011.
In that social and cultural context, the mother visited the father in the W Clinic between November 2009 and early 2010 to try and restore the relationship with the man with whom she had had a child. She was criticised for this. Given the age, circumstance and history of the mother and the failure by the father’s family and his health professionals to apprise the mother of the father’s illness and history, such criticism was unwarranted.
From the notes of the W Clinic at that time it is clear that there was an assumed knowledge by the mother of the father’s mental illness. There is no evidence that anyone sat her down and explained the full nature, history and effect of the father’s illness, including, how it impacted upon the father. The first time she managed to have a meeting with the psychiatrist with the father was in late 2011 after the birth of their second child and after the father’s mental health had deteriorated throughout that year.
The mother claims that on numerous occasions she was forced to have sex with the father contrary to her will. She said this commenced in 2008 and continued throughout the relationship. She was robustly challenged in cross-examination in relation to this as to why there was only one disclosure (vis 2008). The mother, when pressed, said she was embarrassed. She did make some disclosures.[25]
[25] Exhibit F4 page 2.
Counsel for the father used large, complex sentences and had difficulty reducing the questions to simple understandable phrases. An example of this is where the mother had used a word (probably provided to her by her advisors) that the father’s psychiatrist was a ‘hired gun’ for the father.[26] The mother cogently explained that she meant he was on the father’s side. That explanation was consistent with the evidence of Dr E. She was cross-examined about a meeting with Dr E where he said that the father was stable. That is consistent with the evidence of Dr E as to the November 2011 meeting and is also possible in terms of the meeting she had with Dr E. It is not inconsistent with the evidence of Dr E in relation to the conversation alleged on 3 February 2012.
[26] Mother’s trial affidavit at paragraph 140.
It is unfortunate that in some cross-examinations there is enormous pressure on people to display a perfect memory. None of us has a perfect memory, and trials are not and should not be memory tests. The mother did the best she could given most of these events occurred three or so years ago.
The mother described the interactions between her and the father from 28 August 2011 through to 4 and 5 February 2012. She was generally careful and consistent in her evidence. This does not mean there were not some lapses.
The mother was robustly challenged in relation to her allegation of sexual abuse. The mother gave evidence of her fears of the father given his behaviour and those fears were for her and for the children. Given the evidence as to the behaviour of the father over that period of time, his lack of candour and the advice given to her in 2009 by staff at the W Clinic and Child Protection Officers, the challenge to the reasonableness of her concerns about the father cannot be sustained.
Objectively, the mother is a petite woman and the father is a large framed man.
Given the mother’s evidence and the context of the parties’ marriage and her long-term association with the violence counsellors I am satisfied that:-
(a)On a number of occasions the father had sexual intercourse with the mother at times which were against her will.
(b)At times the father was pushed and threatened the mother on and endeavoured to dominate her.
(c)The father was jealous of the mother and accused her of infidelity with other men, including his brother.
(d)The father was controlling of the mother in terms of where she went and what she was doing.
An example of the unnecessary criticism of the mother was that a former boyfriend of the mother turned up in the waiting room of the hospital at the time Y was born. The mother’s evidence was that she did not know who was in the waiting room at the hospital at that time. I accept the mother’s evidence and that she had not invited that person. The fact that a member of her community was worried about her well being seems to have been the lever upon which the father, and his family, concluded that the mother was somehow morally corrupt.
The mother was cross-examined by the father’s counsel in relation to the parties’ arguments. The mother frankly conceded that there were many arguments between she and the father. Given the father’s deteriorating mental health that is unsurprising. The mother agreed that she and the father yelled at each other from time to time. She was clear in cross-examination that she had never disputed paternity of the children and that was a delusion of the father. I accept that evidence.
The mother denies the violence that the father asserted the mother perpetrated against him. She conceded the yelling but denied the other allegations. One of which was about oil on a telephone, which she explained was a normal household accident.
She described the attack and the events on the night of 4 February 2012 and the morning of 5 February 2012 as frightening. I accept her evidence in that respect.
The mother was cross-examined in relation to a photograph of the father with the child M[27] and conceded it was a tender photograph and said that these moments were few and far between. She conceded against her interest that Y believes his father does not love him but she said, from her observations, the father did not show love to him.
[27] Exhibit F5.
When pressed about time she objected to the father spending time with the children for, amongst other things, she was being asked to ‘open a door to add stress to their [the children’s] lives’.
The mother denied that she was using these proceedings to punish the father.
When cross-examined by the Independent Children’s Lawyer, the mother said the father was controlling of her through his pressure for sex, failure to support her and that she sought support through the Family Violence Support Service and made complaints to police. She gave cogent evidence in her reasons for going to the father’s home on the evenings of 3 and 4 February 2012. The electricity was not available in her home and whilst her decision was not wise in retrospect, the mother had been recently and reliably informed that the father’s mental health was stable.
She conceded that the father’s condition deteriorated over the day of 4 February 2012. However, it was necessary for her to find accommodation and electricity for her then very young children, M, about 18 months old, and Y, about two and half years old.
The mother was not safe and I accept her versions of the trauma that the father put her and the children through that night. There may be some small element of exaggeration, however, the basic events described by her were fundamental to the violence, threats and control inflicted upon her by the father.
The mother first became aware of the diagnosis that she was suffering of Post-Traumatic Stress Disorder when she read the report of Dr L dated 14 October 2015, shortly before the hearing. The mother gave evidence of the impact of this upon her and how events such as court and inadvertently seeing the father impacted upon her sleep and gave her images of the violence. I accept the accuracy of that evidence.
The mother says she has fears of the future where she says if she has another relationship it would be problematic for her and the children if the father found out. She believed his reaction would be unacceptable. Given the whole of the evidence that fear is soundly based.
It is significant that the father was still concerned about ‘secrets’ when discussing this matter with the Family Consultant and his continuing concerns of the mother having a sexual relationship with his brother, where in circumstances it was a delusion. As to the father sending cards and letters to the children the mother said she did not want this to happen. She explained that it would adversely affect her and the children. I accept that evidence as being an accurate reflection of her state of mind.
I generally accept the mother’s evidence as being reliable and I am satisfied that she endeavoured to tell the truth, albeit from her own subjective point of view.
The Family Consultant
Ms F (‘the Family Consultant’) interviewed the father with the paternal grandmother and his mental health social worker, Ms C, who were present for all or part of the time. She separately interviewed Ms C and the paternal grandmother on 13 February 2015.
She interviewed the mother and observed the children with the mother on 17 February 2015. Given the circumstances, the Family Consultant did not observe the father with the children. That was a sound approach for her to adopt given the history of the parties. The Family Consultant prepared a report dated 3 March 2015 (‘the Family Report’), which report was tendered in evidence.[28]
[28] Exhibit ICL7 Family Report dated 5 March 2015.
Subject to findings of fact the Family Consultant recommended that:-[29]
(a)the children continue to live with the mother;
(b)that the mother have sole parental responsibility; and
(c)that there are no orders for the children to spend time or communicate with the father.
[29] Ibid at page 30.
That view was substantially reflected in the orders sought by the mother and at the conclusion of evidence and was the approach submitted by the Independent Children’s Lawyer.
The Family Consultant was cross-examined by counsel for each of the parties and by the Independent Children’s Lawyer. Prior to giving oral evidence the Family Consultant had read the reports of Dr L and Dr E.
The Family Consultant was robustly cross-examined by counsel for the father, and I note that this particular Family Consultant has been employed in that role for about 14 years and has an extensive professional history prior to that time.
The Family Consultant was challenged in respect of her observations made in paragraph 60 of her Family Report she was asked if she had read Dr E’s report, and she acknowledged she had. She accepted that Dr E has an expertise and he had spent more time with the father. However, she said that the father’s presentations to her concerned her and that she was of the view, from that presentation, that the father had not resolved his issues about the mother and their relationship and his ongoing interest in the mother. I accept both her evidence and expertise in that respect.
The Family Consultant was cross-examined in relation to the supervision of the children (should that occur) by the father’s sister, Ms D. The Family Consultant had not interviewed Ms D and did not know her. She was, however, concerned as to the strength of support that the father’s family had provided to him and the strongly adverse view that the paternal grandmother had of the mother. On the material before her the Family Consultant was not convinced that Ms D could objectively manage that situation. Given the circumstances, that issue is a matter for me.
The evidence of the Family Consultant was that part of the things the father said during the interview were assisted by his mother[30] and that part of the evidence of the father had the appearance of being ‘rehearsed’.[31]
[30] Ibid at paragraph 18.
[31] Ibid at paragraph 56.
I was concerned in relation to some of the father’s evidence as some aspects appeared to be rehearsed. For example, out of context, during cross-examination, the father read a piece of paper in which he quoted the United Nations Convention 46/119 about the ‘protection of persons with mental illness and the improvement of mental health care’. He read out a quotation from that document. That appeared to be very similar to a comment made by his sister in her affidavit.[32] It appeared rehearsed evidence.
[32] Filed 10 August 2015 at paragraph 31.
The Family Consultant gave evidence of the risk in terms of the psychological health of the children being exposed to the father where the mother has grave fears of him and the father’s interaction with the children is likely to be problematic.
The father relied upon a photograph of himself with M but the evidence of the mother, which I accept, was that this was a rare instance and he did not otherwise meaningfully engage with the children.
The Family Consultant made this evaluation, which I accept:-
52.The stress to [the father] as a result of his fractious relationship with [the mother] is likely to have negatively impacted on his mental health. However the subpoenaed mental health documents outline concerns about [the father]’s non-compliance with taking his medication, hence a decline in his health and involuntary hospital admissions. [The father’s] poor management of his mental health condition may have negatively impacted on his behaviour towards [the mother], rather than her negative behaviour towards him being the primary cause of mental health declines during the relationship.
53.It may be significant that [the father] held doubts about whether he was the children’s biological father seemingly up until the paternity test results in March 2014. [The father’s] time with the children has always previously occurred with [the mother] also being present, albeit [the father] reported he had wanted to spend individual time with them. The extent that [the father] has wanted to spend time with the children, that he believed may not be his, compared to his desire to see [the mother] is not known.
54.The history provided by [the mother] and [the father] and the subpoenaed documents scanned suggest that [the mother] has never felt confident in [the father’s] ability to care for the children alone, or with his mother also being present. [The mother] satisfied Child Protection Services staff that she would ensure that [Y] was protected from his father. It is possible that there may have been times when [the father] was well enough that he may have been able to attend to the children’s needs without [the mother]’s oversight. However, [the mother] apparently did not believe this to be the case and the Family Violence counselling professionals and Child Protection Staff provided her with information about taking the risks associated with family violence seriously. As stated in the body of the report, [the mother] stated that [the father] did not attend to [Y] when she had to attend the hospital at short notice during her pregnancy with [M].
55.[The mother] gave examples of [the father’s] behaviour that suggests he does not have a responsible attitude to parenting. She maintains that she separated from [the father] because he hindered her ability to provide for the children’s physical and emotional needs, rather than supporting her to care for the children. His actions of forcibly removing [the mother] and the children from his home in the early hours of the morning on 5 February 2012 suggest that he lacks empathy for the children. It is possible that a lack of empathy is a feature of his personality or of his mental illness. The consultant’s scanning of the mental health documents and police documents did not note any remorse by [the father] concerning his life threatening assault of his then 16 year old brother. During his interview he referred to this incident using legal terms and he spoke of the repair of his relationship with his brother as though this was a mutual responsibility, rather than seemingly accepting responsibility for the damage he caused.
56.As stated in the body of the report, [the father] appeared to have rehearsed the information he (or perhaps others) felt he should provide and there was a lack of detail in his report. Nonetheless it appears he continues to ruminate about his belief that [the mother] was unfaithful during their relationship. His mother appears to reinforce his negative beliefs about [the mother]. [The father] showed interest in knowing about the “secret” side to [the mother]’ life.
57.Children typically benefit from growing up knowing both their mother and their father and to have each parent’s support in their leisure, educational and social pursuits. Children can unrealistically demonise or idolise an absent parent. These benefits need to be considered alongside any possible physical or emotional risks to the children and the parents arising from any proposed parenting arrangements.
58.Considering the circumstances at the time of [the father’s] attack on his brother and his claim that he had no memory of stabbing his brother, this incident remains of significance. His mother and other family members were home; their presence did not afford [R] protection. [The father] now has court ordered treatment for his mental health problems. However, [Y] and [M] are young and vulnerable children and there have been many times when [the father] has not been compliant with this treatment regime, albeit he now reportedly follows medical advice and has been proactive in maintaining his positive mental health.
59.It has been noted that [the father] was not observed with the children, hence his likely interaction with the children can only be assumed based on the reported and documented history and observation of him during the interview. Most of the information about his parenting is from [the mother]. This has been reported elsewhere in this report. Ms [C] reported she has observed [the father] being gentle and caring with the boys. [The father’s] presentation at interview did not suggest confidence about his likely parenting ability. His answers to questions at times shifted to provide unrelated information and he tended to be robotic in presenting his information. He appeared to be needy of his mother’s support, although her need to support him seemed much greater. [The father] may not have a good capacity to relate to the children, focus on their activities and to respond to them appropriately.
60. The same problematic relationship dynamics that were a feature of the relationship between [the mother] and [the father] appear likely to be played out in any post separation arrangements for [the father] to spend time with the children. It seems likely that he would use the children as a source of information about [the mother] concerning her possible relationships and her religious involvement of the children. These potential difficulties could possibly be contained in a supervised setting. However professionally supervised time can only occur for a relatively short period of time. The children do not have a current relationship with their father. It is not likely to be in their interests that they and their mother are exposed to the stressors associated with establishing supervised time if this is not likely to safely extend to some ongoing unsupervised periods. It will be confusing for [Y] that his father calls him [H] (assuming he does) a name that he is not known by. The children are not likely to form and maintain a trusting and close relationship with their father following a short period (of up to a year) of supervised time only.
61.The Mental Health Tribunal considered that these court proceedings are stressful for [the father]. An order in favour of [the father] spending time with the children may temporarily relieve his stress as he would feel vindicated and be pleased to see his children. However there are likely to be stressors associated with him seeing the children. In the short term, [the father] might be disappointed about the time it takes for the children to feel comfortable with him. They may remind him of the difficult times he and [the mother] had. The children might make statements that arouse his suspicions about [the mother] being promiscuous. It is normal that parents become stressed when they are trying to manage their children’s difficult behaviour, [the father] may not be well placed to cope with the usual challenges of young children and of parenting.
62.It appears that [the mother] would hold fears for the children’s physical and emotional wellbeing in their father’s supervised and unsupervised care based on her experiences of [the father]. She has experienced improvements in [the father]’s mental health that have not been long lasting. As stated previously, professional advice to [the mother] has been to help her understand the possible risks that [the father] proposed to her and the children. It might be contradictory to expect that [the mother] would now seek assistance from the same or different organisations to help allay her concerns about the children’s safety and well being with their father. It seems likely that therapeutic assistance to help [the mother] cope emotionally with her fears for the children in their father’s care would be largely ineffective.
63.The happiness and well being of a child’s primary carer and the child are linked. The stress of any arrangements for the children to spend time with their father is likely to have a short term and possible long term detrimental impact on [the mother]’ functioning as a parent.
64.There has been no direct communication between the parents since February 2012. It will not benefit the children to have their father made aware of the parental decisions their mother intends to make on their behalf.
65.If the court were to make an order that [the children] spend no time with their father, [the mother] may need assistance to respond appropriately to their questions about their father as they become older. If [the children] were to express a desire to meet their father at some time in the future it may be appropriate that [the mother] contact the Children’s Contact Service to see if this can be arranged.
I accept the assessment made by the Family Consultant as it reflects my similar assessment, after I had read, heard and reflected on all of the evidence.
I accept the evidence of the Family Consultant in relation to the benefits, the concerns and the risks that the father poses or has if he spends time with the children.
I am satisfied that the Family Consultant gave her evidence frankly and within the context of her expertise. I reject the submission by counsel for the father that the Family Consultant had come to a conclusion then made the arguments to support that conclusion.
Dr L
Dr L was a single expert psychiatrist who provided a report in relation to psychiatric circumstances of the father. That report was read into evidence. [33]
[33] Exhibit ICL 3 report 15 October 2015.
Dr L also provided a report in relation to the mother. That second report was read into evidence. [34] There were no issues in relation to Dr L’s qualifications and Dr L made himself available for cross-examination via telephone.
[34] Exhibit ICL4 report 14 October 2015.
The challenges to Dr L’s recommendations came primarily from the basis of the factual information that had been provided to him. In terms of the mother, counsel for the father asserted that the mother had made no complaints to the Family Violence Support Service and that if her evidence was not accepted it would undermine the view of Dr L. I accept that assertion, however, I am satisfied that the information provided by the mother to Dr L was accurate.
Dr L discussed areas of the time or how the children could reunify with the father. Given the findings elsewhere I need not consider this as I am satisfied that the father should not spend time with the children. I do not consider it appropriate for there to be supervised time as I am not satisfied that the father could be contained in any supervised circumstance, given that he was in his parents’ home when the incident involving his brother occurred, and that he was in a secure facility in 2012 when he was involved in some violence.
Dr Ls’ evidence was reliable.
Dr E
Dr E is the father’s psychiatrist and has treated him since about 2007/2008. Dr E relied upon his affidavit filed 10 August 2015 and sworn 4 August 2015. Annexed to that affidavit was his report dated 11 June 2015. There was no challenge as to his qualifications.
Dr E conceded at the start of his evidence that his interests were in the patient (the father) and that although he would be frank and careful there must be some slight measure of bias given the length of the therapeutic relationship. I am satisfied that Dr E gave evidence accurately, frankly and professionally. He is close to the father and has seen the father through the trials and tribulations of his illness over the last seven or eight years.
Dr E’s view is that the current restrictions on the father following the orders made by the Supreme Court in 2005 ought to be dismissed and he will be supporting the father in that regard. He conceded that if the father is placed under significant stress, it is possible for his illness to become more symptomatic. He said the father is currently on a high dose of medication treatment.
Dr E gave his views as to the physical and emotional risk to the children if the father was properly treated and the illness was contained. However, that decision is a matter for the Court. Dr E would be interested in these reasons and accordingly, I intend to make a direction that a copy is provided to him.
Further, she argued that both the Family Consultant and Dr L agree that any order for the father spending time with the children would ‘have a significant and detrimental effect on the mother’s psychological health and as a consequence this would have a negative effect on the children also by destabilising their environment.’[53]
[53] Exhibit M5 mother’s Case Outline filed at page 23.
Finally, counsel for the mother submitted that their eldest child Y is scared of the father because of all of the ‘ongoing family violence’, the father’s conduct on the final night of separation and what she says, at best, is the father’s ‘rough’ handling of Y. She said that the mother’s evidence was that those fears remain for the child.
She submitted that it was ‘open for the Court to find that the father poses a direct risk to [the children], however, if that is so not held, it is also open to the Court to hold the father poses an indirect risk to the children stemming from the inevitable deterioration to the mother’s mental health’ as a consequence of the father spending time with the children.[54]
[54] Ibid.
The father was violent to a fellow inmate and threatening to another when in the W Clinic in 2012, when under intense supervision.
The father has no or little insight into his past violence towards the mother and others. He does not acknowledge his controlling, intimidating and threatening behaviour towards the mother. He continues to believe she was unfaithful to him, including with his brother.
The father is likely to use the children as a source of information for him. He is likely to be impatient with the children.
The child Y is scared of his father, and given the events at the time the parties were living together, particularly from the February 2012 events, that fear is not unreasonable.
An order for supervised time will have a significant adverse impact upon the psychological and emotional wellbeing of the mother. I accept the evidence of the Family Consultant and Dr L in that respect.
If the father’s mental health deteriorates whilst the children are with him, whether supervised or not, the father presents as a direct physical and psychological threat to the children. As such, I find that the father presents as a direct and indirect unacceptable risk to the children both physically, emotionally and psychologically and I am not satisfied that this is ameliorated by way of some form of supervision.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b)
In addressing this factor counsel, for the mother submitted that unacceptable risk was a major issue in this case and as a consequence greater weight needed to be given to protect the children, over developing a meaningful relationship with their father.[55]
[55] Ibid page 24.
From the evidence of the mother, the Family Consultant, Dr E, Dr L, the father and the other witnesses, I am satisfied that the father presents as an unacceptable risk to these children both in a physical sense and an emotional sense.
Section 60CC(3) Factors
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
I accept the evidence of the mother that Y is scared of the father. I accept that it is likely that Y has said the father does not love him. The parties’ youngest child, M, has no recollection of the father.
The mother leaves photographs and albums in the house with positive images of the father. Given the age and maturity of the children and the circumstances of this case, I do not give their views any significant weight.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
As indicated earlier, it is clear that the children have a good relationship with the mother and she is their primary carer. They have no current relationship with the father.
(c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Counsel for the mother submitted, and I accept, that the mother has been an excellent parent to the children and responsible for their care.
During the time the parties were together, the father had limited involvement with the children. The care of the children was left primarily to the mother. The father complained that he was not left alone with the children, given his mental health issues, that is a sound protective measure taken by the mother.
(ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The children have been almost solely financially supported by the mother. The father has not provided any financial support. He has been in employment for some time, however, it is not clear whether he is paying child support or not.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
If changes were made to enable the father to send letters and cards to the children, there are significant problems in terms of how that would impact upon the children and how that would impact upon the mother, given the evidence to which I have referred elsewhere.
If the father were to spend time with the children it would involve significant practical issues for both parties to work their way through and, given what I have said elsewhere in these reasons, significant and unacceptable risk to the children.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
If an order was made for the father to spend time with the children, in the circumstance of this family, there would need to be strict and intense supervision. As such the father’s family would not be a viable option. The ways to overcome the problems as discussed during the hearing became more and more difficult and convoluted. It would be very limited and would not lead to any ongoing relaxation of time. Given the broader concerns, it is not a realistic option.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Counsel for the mother submitted that the mother has a ‘clear and proven capacity to care for the children and meet their needs’. I accept and adopt that submission.
The father has limited capacity to feel empathy and understand the emotions of others.[56] The father’s ability to deal with his mental health issues and his underlying personality issues has raised concerns about his capacity to engage with the children in a meaningful way.
[56] Exhibit ICL7 at paragraph 55 of Family Report dated 4 March 2015.
There is significant evidence that the father has narcissistic traits to his personality and also significant cultural beliefs. The parties argued about the religious instruction for their children during the course of their relationship and this led to great conflict.
The father has strong views in relation to religious upbringing although he asserted that he has withdrawn from that focus in recent times. I am not satisfied that the father can provide for the children’s emotional or physical needs and would need great assistance. Even then this would leave the children exposed to possible physical and emotional abuse or uncontained use of language.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The paternal grandfather was born in Northern Africa, he has family in the Northern African region. The paternal grandmother is Australian.
The father practices Islam and the mother is a practicing Christian. The mother was born in the Horn of Africa and spent many years in a refugee camp in Sudan. She has lived in Australia since she was about 15.
Her parents are Ethiopian and their family have strong Christian beliefs. The mother’s evidence, which I accept, is that she will let the children decide their own religious pathways when they are old enough to do so.
Counsel for the father, quite properly, submitted that the mother could not provide the rich cultural background that is available through the father and his family. The mother disagreed with this.
The mother asserted she is not negative towards the father in her household and I accept this evidence. However, I accept that she is unable to provide the rich ethnic background that could be provided by the father or in his household however, that is just but one factor to which I must have regard.
(h)Section 60CC(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 is not a relevant factor.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother has adopted a child focused approach to her responsibilities of parenthood by ensuring that the physical and emotional needs of the children are being met, particularly by attempting to keep them safe from the father’s demonstrated capacity for violence.
The father has, by exposing the children to violence in the parties’ household, demonstrated that he has not adopted a child focused approach to his responsibilities of the children.
This is supported by the observations of the Family Consultant at paragraph 55 of her report set out earlier. In addition, the Family Consultant has concerns that the father’s needs (should they conflict with the children’s), would prevail in any interactions with the children. I am unconvinced that the father has the capacity to meet the physical and emotional needs of the children.
(j) any family violence involving the child or a member of the child’s family;
The father denies that he has engaged in any violence or any inappropriate behaviour. The father sought to deny and minimise any aspect of family violence. Counsel for the father tried to narrow them to a number of issues during their submissions. I do not accept those submissions.
Counsel for the mother submitted that ‘the children and the mother have experienced family violence on an ongoing basis in the four years the parties were in an on-again off-again relationship’.[57] I accept that submission as the independent evidence from the FVCSS records and the records from Tasmania Police supports it.
[57] Exhibit M5 mother’s Case Outline page 27.
I accept the evidence of the mother that she was subjected to controlling, abusive and violent behaviour throughout the period of time that the parties were together between 2008 and February 2012.
The father’s jealousy of the mother was often the catalyst for his violent outbursts towards her and others, which I have discussed elsewhere in the Reasons.
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
In these Reasons I have set out numerous family violence orders, some of these orders have been mutual. Most of the orders have been directed against the father to protect the mother. I have had regard to the orders but more importantly the underlying factors upon which they were based.
I reject the father’s evidence that the mother was violent to him. I accept that they sometimes had loud and voluble arguments. However, I do not accept that the mother assaulted the father except in terms of her self-defence in August 2011 and in February 2012.
(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;
An order that the father send letters and cards is likely to lead to more proceedings in one form or another. It may be that the mother would need to seek some sort of court release if letters and cards are inappropriate.
It may be that the father will take that as an encouragement for him to apply again for orders that the children spend supervised time with him.
On the evidence before me now and the long-term evidence of the father’s health, it seems to me that supervised time is unlikely in the short, medium or longer term with regard to these children and the father.
If an order was made for supervised time the supervision would need to be so constrained and limited that it would inevitably lead to further proceedings in one form or another. That would not be in the children’s best interests.
(m)Any other fact or circumstance that the court thinks is relevant;
Counsel for the mother asserted that the father has had numerous relapses (although not recently) and that he can well understand his actions and remember them although unwell.
The father had limited insights into his illness and described the mother’s reluctance to allow him to be alone with the children as controlling and suggested that the mother was paranoid about him.
Counsel for the mother correctly submitted that the father complained the mother rarely attended care meetings and later stated that attendances were ‘up to her’. It is clear that the father, from his affidavit, was concerned about his ‘privacy’ and only invited the mother to come to see Dr E with him in November 2011.
In his report[58] and in evidence Dr L observed that the father had a propensity to accuse the mother of infidelity which was likely to be characteristic of personality and enduring aspect of personality. He described the father as self-centred and that his attribution of his violence to the mother was extraordinary. He was concerned that the father was seeking to meet his own needs before others and said that the father was jealous and violence prone. The father had little or no any appreciation of how the mother suffered at all, and the father just brushes it off. Dr L said it was unlikely that would change.
[58] Exhibit ILC3 - report of Dr L 14 October 2015.
Dr L did recommend supervised time after two to three years. Given my broader view of the evidence, I do not find that that is feasible in the circumstances of these parties and these children.
I accept that the father will delay his application for the revocation of supervision order and he will afterwards remain a voluntary outpatient.
Parental Responsibility
The mother has exercised parent responsibility for the children since their birth. The interaction between the father and mother has been poor, and understandably so, given the abuse and violence to which the mother was subjected.
The mother has not spoken to the father since February 2013 and is afraid of him, and given the circumstances, those fears are well based.
There is no sensible way that the mother could or should co-parent with the father. The presumption is rebutted and there ought not and will not be an order for joint or equal parental responsibility. The only reasonably available option is that the mother has sole parental responsibility.
I considered the suggestion that the mother keep the father informed of issues of health, education, welfare and development of the children. However, given the history and the impact on the mother, I determine not to make such an order.
Time between the father and the children
The father is a very strong and big man. He is concerned about his fitness and the evidence is that he has recently arranged to attend a gym. He has a serious psychiatric disorder which is described (as indicated earlier) as:-
The most risky within the forensic community population.
The father has acted out in violence against members of the public and people close to him including his parents, his brother, the mother and the children. This occurs when the father’s mental illness becomes unstable. That lack of stability has happened on many occasions since the father’s 19th birthday and up to 2004, on a number of occasions in 2008 through to 2012 including a number of involuntary admissions to various hospitals and institutions.
The father has been relatively stable over the last three years although there was a minor issue with his employer in recent months. The father still has ruminations about his delusional perceptions that the mother has had a sexual relationship with the father’s brother and is still enquiring about secrets of the mother.
The arrangements for supervision of the children would need to be very complex. They would need to have someone who was very familiar with the father’s illness and his treatment and someone who was not close to him or protective of him or his interests.
It is possible, if not probable, that if the father’s mental health deteriorates, which can happen quite quickly, and given his general somewhat different disposition, it may be difficult for unskilled supervisors or supervisors who are close to the father (recognising the consequences if there is a problem) to know whether the father’s mental illness is stable or not.
There would need to be arrangements made in advance in the medium and very short-term. Given the father’s predilection to uncontained thoughts and speech there is no realistic way that the children can be protected from the father’s emotional abuse, although the supervisors may be able to provide some help in respect of enquiries as to the children’s whereabouts or the mother’s circumstances.
Given the father’s psychiatric history and the factual history, there is no basis where this Court could reasonably consider unsupervised time with the children in the short, medium or long term. The question is whether there ought to be supervised time.
In that context the history of the father, his history of violence, his lack of insight and notwithstanding his current circumstances, I am satisfied that the children are and remain at an unacceptable risk of physical harm in the supervised care of the father. I am further satisfied that the children are at risk of emotional harm in the unsupervised care of the father.
Finally, I am satisfied that the mother suffers from a Post-Traumatic Stress Disorder and has a deep, and well founded, fear of the father in terms of his controlling behaviour, emotional abuse, physical abuse and sexual abuse of her over the period of time of their relationship and that such time, if it occurred would have a profound impact on her capacity to parent the children. Dr L observes that:-[59]
Should there be contact between the father and the children [be recommended] by the court then I would expect this would have a significantly negative impact upon [the mother’s] state of mind. She reports heightening of her fears, images and nightmares in the weeks leading up to the forthcoming court hearing as if she is being re-traumatised by the court process.
[59]Exhibit ICL4, page 7 – item (g).
The mother’s circumstances may improve if she undertakes Cognitive Behavioural Therapy, however, to do so she would have to expose herself to significant trauma, which should be a matter for her rather than an imposition by the Court in those circumstances.
Given the evidence before me I am not satisfied that there are measures available for deployment that could mitigate the risks to the children.
Accordingly, the father should not spend time with the children.
Sending of letters and cards
The question as to whether the father should be able to send letters and cards to the children, either through his case worker or some other third party, was the subject of debate and subject of consideration by the Court.
The evidence of the Family Consultant was that this would have the capacity to confuse these very young children rather than be helpful to them. The Family Consultant suggested that this may occur at some later date, but she was reluctant to suggest a date given that circumstances can change. When pressed she indicated that perhaps upper primary school around the age of 12.
Given that the mother has a deep fear of the father, including fear that she or the children will be found, her experience of him during the time they were together between 2008 and February 2012, and given the evidence of the Family Consultant, I determine that the sending of letters and cards would not be in the best interests of the children at this stage although, that may be a matter which the mother may consider when the children are much older.
I considered the suggestion made by Dr L in his reports.[60] Dr L said, in the context of the orders sought by the father, that if orders were to be made for no time and given the fragile state of the mother’s mental health, that perhaps the father could start by writing to the children and by sending photographs of himself to the children and family allowing more time to pass before contact was made.
[60] Exhibits ICL3 and ICL4.
Given the broader findings, it would seem to me that this would start something which would lead to nothing. Consequently, I am not satisfied that it would be in the best interests of the children having regard to the circumstances that they find themselves.
Residence
The parties all agree that there should be an order that the children reside with the mother. Accordingly, I will make that order.
Injunction
The mother has serious concerns that the father will harm her or harm the children. She describes her fears, which are continuing and, which become greater at times when she accidentally sees him or incidentally sees him or during court processes.
The mother did not seek an extension of the last family violence order. It is likely, given the circumstances at that time that such order may not have been granted.
Certainly the mother’s incidental sighting of the father at shopping centres and the like would not be the basis for such an order. The mother seeks an order that the father not approach within five hundred metres of her. That is half a kilometre. I believe that is far too wide.
However, I do accept that there needs to be some measure of protection of the mother and children from the father and some positive injunction restraining him from approaching either the mother or the children. As such, I intend to make the order but limit it to fifty metres.
Reside in Hobart
There was an application by the father that the mother resides in the Hobart area. This was not subject to much evidence or submission. However, given the nature of the no time or communication orders to be made, such a restriction would serve no purpose.
Watch list
The father sought an order that the children be placed on a watch list to prevent the mother removing the children from Australia. There is no evidence that the mother has or would endeavour to remove the children from Australia. Further, the mother’s history is such that she and her family have gone to great lengths and endured hardship to settle in Australia. Given that history provided by her, including her place of birth and later a refuge, moving overseas is unlikely to be attractive or even available to the mother.
I see no need to make a Watch list order, having regard to history, the nature of the no contact orders to be made pursuant to these reasons and the operation of s 65Z of the Act. That section, set out below, makes it unlawful and a criminal offence to take the children out of Australia without the consent of the father or order of a Court pursuant to the Act.
The section provides:-
Section 65Z - Obligations if proceedings for the making of certain parenting orders are pending
(1) If proceedings (the Part VII proceedings) for the making of a parenting order to which this Subdivision applies are pending, a person who is a party to the proceedings, or who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as mentioned in subsection (2).
Penalty: Imprisonment for 3 years.
Note: The ancillary offence provisions of the Criminal Code, including section 11.1 (attempts), apply in relation to the offence created by subsection (1).
(2)Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:
(a) it is done with the consent in writing (authenticated as prescribed) of each other party to the Part VII proceedings; or
(b) it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, after the institution of the Part VII proceedings.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
The child Y’s first name
There had been some issue about whether Y should use that name as his first name or ‘H’, the latter, which had been his registered first name.
The parties agreed to a consent order regarding that name which was supported by the Independent Children's Lawyer and provided:-[61]
1.The mother may change the first name of the child [H ESFARA] born … 2009 from [H] to “[Y]”.
2.The mother is authorised to do all acts and things necessary to amend the child’s registration of birth, so that a birth certificate issues in the “[Y H ESFARA]”.
3.That the eldest child [name] is to be known as [Y], both parties are to refer to him as [Y] and both parties will discourage any third party referring to [Y] as [H].
[61] Exhibit ICL6 - Memorandum of Consent.
Given that agreement with the support of the Independent Children's Lawyer and that Y is the name generally used for the child, I made that consent order.
I certify that the three hundred and seventy three (373) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 13 January 2016.
Associate:
Date: 13 January 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Consent
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Jurisdiction
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Remedies
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