Essey and Elia

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESSEY & ELIA

[2013] FCCA 1525

Catchwords:
FAMILY LAW – Undefended parenting proceedings – children’s best interests – significant and extensive family violence perpetrated against Mother and child – marriage suggested to be in accordance with the rights of the Islamic faith between a minor and an adult – failure by mandatory notifier to discharge their obligations.

Legislation:

Family Law Act1975, ss.4, 60B, 60CA, 61DA, 60CC, 65DAA, 67ZBB, 68B, 68C, 65BAA, 65DAC, 65Y
Australian Passports Act2005, s.11
Marriage Act1961

Johnson & Page [2007] FamCA 1235

Applicant:

MR ESSEY

Respondent:

MS ELIA

File Number:

PAC 1945 of 2013

Judgment of:

Judge Harman

Hearing date:

19 September 2013

Date of Last Submission:

19 September 2013

Delivered at:

Parramatta

Delivered on:

19 September 2013

REPRESENTATION

Solicitors for the Respondent:

John Spence & Associates

Solicitors for the Independent Children's Lawyer:

JPM Legal

ORDERS

The order for the appointment of an Independent Children’s Lawyer is discharged with the Court’s thanks.
The child [X] born [in] 2007 shall live with her Mother Ms Elia.
Ms Elia shall have sole parental responsibility for [X].
Pursuant to section 68B of the Family Law Act1975 the Father, Mr Essey shall be and is hereby restrained from:
(a)Contacting or communicating with Ms Elia by any means whatsoever including through third parties;
(b)Approaching Ms Elia or being within 100m of her, her place of residence or place of work;
(c)Taking into his care the child [X]; and
(d)Attending at or being present at any school attended by the child from time to time.
Pursuant to section 65Y of the Family Law Act Ms Elia shall be authorised and entitled to remove the child [X] from the Commonwealth of Australia for the purpose of travel at her discretion.
Dismiss all outstanding applications and responses and remove all issues from the list of cases awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
Any request for inspection of the Court file or documents held thereon by any Agency seeking to investigate any issue or allegation raised in these proceedings is to be directed to me in Chambers.
Publish my reasons.

THE COURT NOTES THAT:

The above orders made pursuant to section 68B of the Family Law Act are subject to the provisions of 68C of the Family Law Act and thus any police officer who believes on available evidence that a breach of the injunction has occurred shall be and is hereby authorised and entitled to arrest Mr Essey without warrant and to thereafter bring him before this Court to be dealt with in accordance with the provisions of the Family Law Act and not otherwise (noting that the provision of State bail legislation do not apply).
The orders made above are intended to vest sole parental responsibility for the child [X] in Ms Elia for both the purposes of the Family Law Act and the Australian Passports Act2005.

IT IS NOTED that publication of this judgment under the pseudonym Essey & Elia is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1945 of 2013

MR ESSEY

Applicant

And

MS ELIA

Respondent

REASONS FOR JUDGMENT

These proceedings relate to future care arrangements for a young female child [X] born [in] 2007. [X] is, accordingly, six years of age.
The parties to the proceedings are [X]'s parents, being her Father

Mr Essey who is the Applicant and [X]’s Mother Ms Elia, who is the Respondent.
The proceedings were commenced by Mr Essey by Application filed 9 May 2013. That Application sought orders with respect to [X] on the following basis:
a)That the child live with her Mother;
b)That the parents have equal shared parental responsibility;
c)The child spends time with the Father for various periods including:
i)Each Wednesday after school;
ii)Each alternate weekend from Friday to Sunday;
iii)Each intervening weekend from Saturday to Sunday; and
iv)Half of school holidays and other periods of time.
The matter first came before the Court on 25 June 2013. On that date both parties appeared and were represented. The proceedings were adjourned to today for interim hearing.
Prior to adjourning the proceedings the parties were directed to attend a Child Dispute Conference which occurred that day. The memo from that Conference comprises part of the evidence in the proceedings.
On the basis of the serious allegations raised in the proceedings, and to which I will return shortly, an independent children's lawyer was appointed to represent the child's interests.
The proceedings come before the Court today on an undefended basis.
A Notice of Discontinuance was filed by the Father through his attorneys on 9 September 2013.
The Notice purports to discontinue, in its totality, the Application initiating proceedings. Thus the only Application before the Court is that of the Mother as comprised by her Response filed 25 June 2013.
The proceedings were first called at approximately 9.45am the matter having been listed at 9.30 am. There was no appearance at that time by the Father or any legal representative on his behalf.
The Court was advised by the Mother's attorneys that they had received an email from the Father suggesting that he would be personally in attendance. Accordingly, and by reference to the New South Wales Chief Magistrate's Practice Direction, whilst not binding upon this Court, a most sage and appropriate policy described therein, the proceedings were stood in the list to allow some further period for the Father's attendance if he was intending to appear.
The proceedings were recalled at 10.30am being approximately one hour after the initial listing. There was still no appearance by the Father who has not responded to the call, the matter having been called outside the Court precincts on three occasions.
The Father has not communicated to the Court, via my Associate or the National Inquiry Centre, any difficulty with his attendance or any other matter. He has not communicated with any person at all in any fashion to suggest his intent to appear and, in any event, his appearance would not be in support of, in furtherance of, or to agitate any Application before the Court as he has no Application before the Court.
The Father was present in person and legally represented on 25 June 2013 when today's date was allocated.
The Notice of Discontinuance filed by the Father through his attorneys would suggest that the Father was aware of the existence of the proceedings and the listing today. The Father would be aware that a Response has been filed by the Mother and that she is, thus, entitled to press for relief in accordance with that Application.
The Father participated in the Child Dispute Conference on 25 June 2013. The Father did not, during that Conference, suggest any impediment to his attending Court in the future and I accept and am satisfied that:
a)The Father is aware of today's listing;
b)The Father is aware of the relief sought by the Mother; and
c)The Father, not being in attendance, it is entirely appropriate for the matter to proceed and conclude today on a final and undefended basis.
There is nothing to be served by further adjournment of the proceedings as there is no application by the Father to be pressed or spoken to. Nor am I satisfied that the Father would appear. Indeed, but for matters raised by Counsel for the Mother, a referral of the papers in these proceedings would be made to both State and Federal Police for investigation as to whether one of a range of criminal offences have been committed by the Father or other persons and that disclosed in the Mother’s material may well have influenced the Father’s decision to discontinue his Application.
There is also some concern, based on the Mother's evidence, that there has been a failure by a mandatory notifier, (being a teacher at a high school which the Mother attended at the time that her relationship with the Father commenced), to discharge their obligations. The Mother’s evidence, at paragraph 10 of her Affidavit, asserts that she had made a teacher at her school aware of her marriage to the Father. The marriage is suggested to be in accordance with the rights of the Islamic faith and at a time when the Mother was 14 years of age and at which time, cohabitation, if not a sexual relationship, would appear to have commenced.
Upon publication of these reasons and should any Agency wish to investigate matters for that purpose, they are in a position to make Application to the Court for leave to inspect the file and obtain material. That would include the Child Dispute Conference memo in which an admission is made by the Father in the following terms:
The Father admitted that he knew at the time of the Islamic marriage to the Mother that she was 14 years of age. He said he was 18 years of age. The Mother said that the Father was, at that time, 21 years of age. The Mother alleged that the Father had sexually assaulted her after they were married which the Father denied.
In the event that the marriage was suggested to have occurred under the provisions of the Marriage Act1961 then notwithstanding the objections and protestations of the Mother, for perfectly rational and reasonable bases as will become apparent from a discussion of the evidence, such a referral would occur and the Court would be obliged to ensure that it was so.

Material considered

I have read and considered each of the following documents:
a)The Response of the Mother filed 25 June 2013;
b)The Mother's Affidavit sworn or affirmed 24 June 2013 filed 25 June 2013;
c)The Form 4 Notice of Abuse filed by the Mother 25 June 2013;
d)The Child Dispute Conference memo 25 June 2013; and
e)The Notice of Discontinuance of the Father filed 9 September 2013.

Factual background

As the proceedings are undefended I accept and make findings of fact in accordance with each paragraph of the Mother's Affidavit.
The Mother’s evidence is given with candour and frankness and is not challenged. Thus, I am satisfied that a finding of fact in accordance with each paragraph is appropriate.
The Mother's evidence is troubling and concerning.

The parties’ marriage

It is quite clear from the Mother’s evidence that, at the age of 14 and with the full knowledge, if not, connivance and cooperation of her parents, that she was engaged in a non-legally sanctioned marriage ceremony and thus commenced her cohabitation and sexual relationship with the Father who was either 18 or 21 at the time of the marriage.
It is to be noted that the Father, in his application and affidavit, suggests that he was born on 27 July 1982. The Mother was born on 21 February 1989. Accordingly, if the Mother was 14 years of age at the time of marriage (and the Mother being some seven years the junior of the Father), that would suggest that, indeed, the Father was 21 years of age at the date of that marriage.
The Mother's evidence, in its totality, suggests that she was in every respect, at the time of the marriage, not only legally, but psychologically, a child.
One of the documents annexed to the Mother's Affidavit is an application for her enrolment into Year 9 at [omitted] High School. That enrolment form is signed by the Father as the “Father or Guardian” of the Mother. The form would also appear to have been signed by the Mother's Mother, i.e., the Maternal Grandmother.
The Mother's evidence suggests that at the time of the marriage she did not consent. She also indicates, at paragraph 7:
My Mother pushed me to get married. She would say to me, words to the effect, "You will have your fun. Your dad is strict. You can come and go as you please. You've always wanted to go out to Jamberoo and Wonderland. You get to go to movies, have popcorn, lollies, ice-cream and chocolate. You get to have fun and live life. What you see of everyone having fun on the TV, this is what it is going to be like. You're very, very lucky."
It is highly concerning that the very matters that are referred to in that conversation, which I accept is accurate and factual, as being the matters which suggest the benefit to this young woman, then a child, of marriage, are matters which are very much the stuff of childhood.

Family Violence

The Mother indicates, as part of her extensive evidence with respect to family violence that events would occur between her and the Father such as his precluding her from watching TV. The Mother indicates, at paragraph 16 of her affidavit, consistent with her being a child at the time, "I wanted to watch Home and Away and Neighbours." She was not allowed to.
The Mother was not allowed by the Father to watch DVDs, although, on one occasion consistent with the Mother's evidence in paragraph 20, and whilst a child, the Father brought home a DVD which he insisted the Mother watch with him. She deposes in that paragraph as follows:
It showed soldiers who had been taken as hostages. People were taping their mouths and putting fire crackers into their ears. A grenade was taped around their bodies. A grenade was thrown at them and their body parts blown off onto the floor. I started to scream.
That is not surprising.
It is suggested that the Father then forced the Mother's face into a pillow to stop her screaming and said:
If you tell someone they will lock you up for the rest of your life. They won't lock me up, they'll lock you up.
The Mother is suggested to have replied, "How could they, I was forced into this."
She suggests she later destroyed the DVDs.
The Mother also indicates, as part of her extensive evidence with respect to family violence, that in 2004 she signed out of school. She suggests at paragraph 19:
I was forced to do this by Mr Essey, [the Father]. He used to burn my homework.
It being remembered that this is a girl in Year 9 completing her homework, and her homework being burnt and interfered with by a person suggested to be her husband and seven years her senior. The Father is suggested to have said to her, at that time:
If you don't drop out, [of school], I'll move so far away you won't ever see people.
The Mother suggests that:
One time he found me trying to do my homework and said "You should not be learning this. I got you a few CDs of what you should be learning."
Presumably a reference to the DVD referred to and discussed above.
It is suggested that the Father had indicated to the Mother that both she and he needed to become "Soldiers of Islam".
The above evidence is not referred to so as to suggest either any criticism of the Islamic faith or to suggest or accept that the behaviours of the Father as referred to are in any way consistent with adherence to belief in or practice of the Islamic faith. Far from it. They are simply suggested as representing a most heinous interference in this young girl's childhood by, it would seem, not only the Father but her parents, as well as the most significant family violence.
The Mother's evidence is resplendent with incidents of family violence and her evidence touches upon each of the elements of family violence contained in the defined of family violence in s.4AB of the Family Law Act 1975.
Family violence is defined therein as including assaults. The Mother gives significant evidence of such assaults to which I shall return.
The definition of family violence includes sexual assaults as to which the Mother gives significant evidence. It includes stalking and derogatory taunts as to which, again, the Mother gives significant evidence.
The definition refers to intentionally damaging property which events the Mother's evidence is resplendent with.
The definition refers to intentionally causing death or injuries to animals. There is reference to that, at least, post-separation.
The definition includes unreasonably denying a person financial autonomy. The Mother's evidence makes clear that she had no financial autonomy whatsoever.
The definition includes unreasonably withholding financial support. Again, the Mother's evidence makes clear that this applied to every day of her life with the Father.
The definition includes preventing the family member from making or keeping connections with their family or culture. Again, the Mother's evidence is resplendent with that and to the extent that the Mother was able to have any connection with her own family, there were difficulties connected with that to which I will return.
Finally, the definition includes unlawfully depriving the family member of their liberty. The Mother suggests she was routinely locked in the home and not allowed to go anywhere except early in the suggested marriage to go to school provided that she went straight there and returned straight home.
During her pregnancy, the Mother having fallen pregnant with the child of the parties when she was 17 years of age, the Father was imprisoned. It would appear that the Father was held on remand rather than serving any imposed sentence. The Mother indicates at paragraph 23 of her affidavit that the Father had been arrested and refused bail with respect to a charge of kidnapping and aggravated assault.
Material has been produced on subpoena by New South Wales Police. I have not called upon Counsel for the Mother to seek to tender that material on the basis that I accept that it would be corroborative of the Mother's evidence but, as I accept her evidence in its totality, it is unnecessary for it to be corroborated.
The Mother also suggests that whilst the Father was in gaol and whilst she was, presumably, visiting him, that he indicated to her that he had sent a friend to, "Pay the victim to back off and withdraw the charge."
During his time in gaol, members of the Father's family removed all furniture and other items from the property which the parties were then sharing and the Mother thus moved back to her parents' home and lived there including, after the child's birth, with the child. The Mother was not working at that time.
After the Father was released from gaol, the Mother suggests at paragraph 27:
My Mother forced me to get back together with him, [the Father]. My Mother would say to me words to the effect, "You live and die. We're all living like that. You have to accept it. It's normal."
What version of normality involves a 14-year-old child being married to and in a sexual relationship with an adult is unclear.
What version of reality involves a child being exposed to the behaviours of which the Mother complains as well as the most significant, extensive and heinous family violence is difficult to comprehend.
Whilst the Court is reluctant to ever impose any standard of normalcy upon any person, preferring to judge each case on its facts and by reference to the lived experience of those involved in relationships, the suggestion that what was endured by this child, the Mother of the subject child, was normal defies belief.
If that described by the Mother is suggested to be “normal” then the most serious adjustment in perception is required of those holding and expressing those views.
The Mother and Father, ultimately, did reconcile and when the child was very little.
The Mother suggests that after the child’s birth and reconciliation that the violence escalated. The Mother would be routinely subjected to assaults. The Father would kick her, punch her, stamp on her, throw her into walls and against items and abuse her whilst doing so, regularly, referring to her as a "slut" and regularly swearing at her. It is suggested that he would refer to the Mother, routinely, as a "waste of sperm".

The Mother gives extensive evidence, which I do not propose to canvass in full but which I accept in its totality, (and being some 12 pages of detailed incidents), wherein the Father has perpetrated violence upon her and upon others in her company including the most offensive of behaviours in terms of misogynist language and behaviour. This has included spitting at the Mother and other women including, on one occasion, being suggested to have beaten an elderly woman outside of the mosque which she was on her way to attend, as well as assaulting strangers.
The Father is suggested to have been involved in regular criminal activity including robberies and assaults.
The Father is suggested to be a regular and routine user, if not dealer, of drugs.
It is suggested by the Mother that the difficulties with her parents and their attitude towards her escalated further following her separation from the Father which occurred no later than January 2009 and at a time when the child the subject of these proceedings was about 18 months of age.
Following separation, the Father is suggested to have had little time with the child and, certainly for some months preceding the commencement of these proceedings, and to date, there has been no time. That would appear a positive benefit both for the Mother and the child.
The Father is suggested to have come to the Mother's home where she was then living with her parents and referred to both the Mother and the child, in terms of, "Why don't you dogs go back to your kennel?"
It is suggested then that the Father said to her:
You think that when [X] reaches 14 I'm not going to marry her off to one of the brother's sons. Every guy should have that benefit. Don't you ever forget it.
No doubt the Mother would have some real concern in light of her experience that the Father means that threat.
The Father is then suggested to have, again, come to the Mother's home and to have made rude hand gestures at the Mother and referred to her by saying, " You slut. Your pussy is for everyone."
The Father has not provided financial assistance to the Mother since the relationship ended and is suggested, either himself or through others, to have caused significant damage to property of the Mother.
The Father was, for a period of time, in about 2009, spending time with [X], approximately once a week. That was on the basis of the child being taken to the home of the paternal grandparents and then seeing the Father there.
On one occasion, the Mother travelled to Melbourne and left the child in her parents' care and during that period, her parents, in some collusion or conspiracy with the Father and his parents, arranged for the child to be placed with him. Possession of the child was regained by the Mother once she returned from Melbourne.
The Father, on 30 May 2009, attended at the home of the Mother's parents and undertook a savage assault, in company with others, of the Mother's present partner and husband.
The Mother deposes, at paragraph 58 of her Affidavit, and consistent with her evidence as to the role of her parents in her marriage, as follows:
Since my divorce from Mr Essey, I have had problems with my parents. They were not happy about the divorce as they believed it is unacceptable that I have been divorced. For some time I have stopped speaking to my parents as I was so devastated that they did not regret marrying me to Mr Essey. My Father has said to me, "So what if he raped you? So what if he bashed you?" He has also said, "The only way you can come back to me is in a coffin to pray on you." I found it very hard to talk to my Father and forgive him.
Indeed, one could not be critical of this Mother if she never forgave him and never spoke to him again. If he genuinely believes, as he has expressed to the Mother, that there is no difficulty in her being raped, including as a 14 year old child, and being bashed, whether as a child or an adult, by a person with whom she is expected to be in a protective and loving relationship, then there would not appear to be any great value for the Mother and, certainly, not for this child, in that relationship.
The Father is suggested to have made threats of murder and arson and has acted upon some of those threats to the extent of perpetrating violence and property damage.

The child’s time with the Father

The child's time with the Father has been anything but smooth.
It is suggested that concerning incidents have occurred in the time the child has spent with the Father. This has included the Father shooting at birds with a gun whilst the child is with him causing significant concern to the child who, clearly, has a more compassionate heart than her Father and some concern for the animals shot at.
The child has not seen the Father for some little time. She is in year 1 at school. She is suggested to be progressing well and to be a bubbly and popular child at school and friendly and outgoing.
The Child Dispute Conference memo is also concerning.
It is unusual for a Family Consultant, as a consequence of a Child Dispute Conference, to make any recommendations as to the substantive Orders that might be made by the Court. However, the experienced Family Consultant, who met with the parties, was so concerned by the allegations raised that she opined in the final paragraph of the memo as follows:
Given the extremely serious allegations made in this matter which, if found to be true [and I pause to note that I have found them to be true] would place the child at serious risk of harm. It is not recommended that the child spend time with the Father until Police and DFACS records have been viewed by the Court. It is recommended that the matter be expedited.
I am satisfied that the Consultant's recommendation, whilst it is not the role of the Consultant to determine issues of fact – and she has made clear that she does not apprehend it to be so – is an appropriate recommendation and one which I will follow.
The memo, in addition to the reportage already referred to, raises the following matters of concern.
On the second page of the memo it is suggested as follows:
·   The Mother said that in addition to what was reported in that document, [being the Notice of Child Abuse and Family Violence filed by the Mother], the Father had also directly assaulted the child. She claimed that he was frequently irritable with the child, particularly, if the child had woken him and would slap the child across the face and arm and had held his hand over the child's mouth, and would stomp on her foot. He claimed that if she was unhappy with some aspect of the care of the house such as putting too much salt in his food – [why the Father was incapable of cooking his own is unclear] – he would threaten to harm the child and had once kicked the chair the child was in.
·   The Mother said that she had to intervene, many times, to stop the Father assaulting the child. The Mother said that she had sustained many injuries as a result of the Father's violence and was regularly rised [sic] and covered in blood. She said the child was regularly bruised when returning home from spending time with the Father.
·   The Mother said the Father had attempted to run her off the road whilst the child was in her car. The Mother said she had been too scared to report to police or medical staff about the violence because the Father had firearms in his possession. The Mother claimed the child was extremely fearful of the Father because of all that she has witnessed.
·The Mother stated the Father had pleaded guilty to assaulting her partner which the Father confirmed but described the event as an all-in brawl between him, his friend, Mr T and Mr T's brother.
·   The Mother said the Father had also been charged with assaulting a male associate of his and with kidnapping. The Father claimed his associate had been hospitalised with his injuries. The Mother claimed the Father had paid off the victim to withdraw the charges.
·   The Mother alleged the Father was a member of a gang known as [omitted] and that they engaged in criminal behaviour including armed robberies and assaults for which he had been charged.
·The Mother further alleged that the Father's inability to manage his anger included the general public. She claimed he once saw an elderly lady spit outside a mosque and started bashing the lady up in front of her Mother and child.
The Father denied those allegations, however, as I have indicated the Mother's evidence is unchallenged and I accept it in its totality.
The Father has had more than abundant opportunity to be present and participate in the proceedings, present his own evidence as well as to test and deny that of the Mother.
The Father did admit to screaming at the child.
The Father did admit to smashing objects during arguments.
The Father did admit to pushing the Mother but suggests that he had never physically assaulted her (although pushing her is, of itself, a physical assault).
The Father denied that he had ever threatened any harm to the Mother or the child. He went on to allege that the Mother threw punches at him but he did not consider it sufficiently serious.
An Apprehended Domestic Violence Order, clearly, has been made in the past. Whether it is presently in force or not is unclear.

Legislative pathway

I am required to follow the legislative pathway set out in the Part VII of the Act.

Objects and Principles

I must commence with the objects and principles set out in section 60B and which I incorporate herein.
(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).
The objects and principles do not form part of the substantive law but inform the manner in which the substantive provisions are applied. In any event, as in this case, the objects and principles often internally conflict.
The Court is obliged to address whether it is in a child’s best interests to allow both of the child’s parents to be being meaningfully involved in their lives. It is difficult to apprehend what benefit this child would obtain from a relationship with her Father who is described as being abusive in the fullest and broadest sense of the word.
The Court is also obliged to ensure that children are protected from physical or psychological harm through ensuring that they are not exposed to abuse, neglect or family violence as well as to ensure that children receive adequate and proper parenting.
I have no concerns that this child receives abundantly adequate and proper parenting from her Mother and, for that matter, the Mother’s partner. However, I have some real concerns on the evidence available and which I accept, that the Father has any capacity to provide for the child on any level, physically, emotionally or otherwise.
The principles create rights for the child. However, those rights are tempered by the caveat that they apply lest it is considered to be contrary to the child's best interests.
Whilst the child has a right, consistent with s.60B(2A), and the International Convention on the Rights of a Child, to know and be cared for by both parents, I must be satisfied that it is safe for that to occur and in the child's best interests. I am not satisfied that it is safe.

Paramount Consideration

I am reminded by section 60CA that in all that is done the child's best interest is paramount consideration.

Presumption of Equal Shared Parental Responsibility – Section 61DA

I am obliged by s.61DA to consider whether the presumption of equal shared parental responsibility applies. The presumption does not apply if the Court is satisfied on reasonable grounds that a parent has engaged in abuse of the child, or member of the child's family or has engaged in family violence.
Based on the Mother's evidence, which I accept in its totality, and noting that the Mother is, even at the time of this hearing, still a young woman of only 24 years of age, she has been exposed to significant family violence. She has been exposed to abuse, as both a child and an adult, by the Father.
The child has been exposed to family violence. The child has been abused by the Father.
The definition of "abuse" contained within s.4 of the Family Law Act is broad. It includes assaults and sexual assaults. The Mother's evidence, which I accept, establishes that she has been assaulted and sexually assaulted by the Father, including when she was a child herself.
Abuse includes involving a child in sexual activity. The Mother, at the time that her sexual relationship commenced with the Father, was a child, and he was of sufficient difference in age to her that a statutory defence would not have been available to him even if such sexual activity had been consensual.
The Father has caused the child to suffer serious psychological harm. He has also caused the Mother when she was, herself, a child, to suffer serious psychological harm.
There is an issue as to whether neglect has occurred and, noting that "neglect" is not defined in the legislation. On the basis of that suggested as to the child's care by the Father both prior to and post-separation, I am satisfied that neglect has, in all probability, occurred.
In those circumstances, the presumption cannot apply.
Lest I am wrong in that regard, I am satisfied that the presumption would be rebutted. I am not satisfied it is in the child's best interests, for reasons that will become apparent as part of the discussion of s.60CC, for the parents to share parental responsibility.
That being so, I am not then mandated by s.65DAA to consider equal or substantial and significant time before considering any other arrangement. I propose to consider all time arrangements at large and as part of the consideration of s.60CC.

What is in the Child’s Best Interests – Section 60CC

In turning thereto I am obliged to commence with the primary considerations being:
a)The benefit of the child of having a meaningful relationship with both parents; and
b)The need to protect the child from psychological harm.
Subsection (2A) prioritises the latter over the former.
I cannot apprehend any benefit to the child of a relationship with her Father.
I cannot be satisfied on the presently available evidence that the child presently has a relationship or, at least, a relationship of any meaning, with the Father.
The child's relationship with her Father is typified by violence, stress, anxiety and abuse. In those circumstances, it could not possibly be described as a meaningful relationship if it exists at all. To the extent it is correctly referred to as a relationship it is one of fear and revulsion.
Such a relationship as might exist, even if it were not toxic and diseased, would be overridden by my obligation to prioritise the child's need for protection from physical and psychological harm and, for that matter, the Mother's protection from same.
Section 67ZBB imposes a number of obligations upon the Court. The Court must take prompt action in relation to allegations of child abuse or family violence. It requires that I must ensure that appropriate evidence is available about the allegations.
I am satisfied appropriate evidence is available being contained in the Mother's material which I accept. I must ensure that the Court makes orders including, I am satisfied, of the Court's own motion, for the protection of a child or a party from further abuse or family violence.
The Court is authorised to make such orders of that nature as the Court considers appropriate and so as to deal with the allegations as expeditiously and comprehensively as possible.
In the above circumstances, I am satisfied that s.67ZBB, in combination with s.60CC(2A), compels the order that the Mother seeks for sole parental responsibility.
The evidence also compel orders pursuant to s.68B which would go further than simply making no order as to the Father's time but which would preclude the Father coming into contact with the Mother or child save as agreed between the Mother and Father in writing or as may be subsequently authorised by an order of this or another Court made under the Family Law Act.
Orders pursuant to s.68B are subject to the power of arrest specified in section 68C and such will be specified in any orders made by me today.
Thus, with respect to the primary considerations, I am satisfied that:
a)There is no benefit to the child of having a relationship with the Father;
b)There is no existing relationship or existing relationship of meaning between the child and the Father; and
c)There is an overriding requirement for the child's protection from physical and psychological harm which I am satisfied the child would be exposed to if coming into contact with, or communicating with the Father and which would obviate against orders other than as sought by the Mother.
I am also satisfied that there is an unacceptable risk to the child, within the context of the discussion of the Full Court in Johnson & Page [2007] FamCA 1235 in the event that the child were to have contact with the Father.
In turning to the additional considerations:

Views

There is no clear evidence to support a particular view that the child has expressed. However, I accept the Mother's evidence as stated to the family consultant that the child is extremely fearful of the Father.
No doubt this little girl would conflicted by her innate sense of fairness and desire to have, as others in her class at school no doubt have, two parents and a relationship with her Father. However, to pursue such a relationship would be extremely unsafe and that would to be apprehended and acknowledged by the child in expressing fear of her Father.

Nature of the child's relationship with each parent and other persons

I have no doubt, based on the Mother's evidence, that the child enjoys an excellent relationship with her. She has been this child's carer at all times since birth.
The Father had raised with the Family Consultant and after the Mother had left the interviews, that the child had lived with him for a period of time. He suggests that the Mother had taken the child back into her care, purely to, "Get back at me because I've started my life again."
Whilst I have not had regard to the Father's affidavit material, as the proceedings are undefended, that is an allegation that he has also raised in his affidavit material. However, he is not here to agitate a position and I accept and prefer the evidence of the Mother and make findings of fact in accordance therewith.

I am satisfied the child has not ever lived with the Father.
As indicated above I am not satisfied the child enjoys a relationship or a relationship of meaning with the Father or, to the extent that there is any relationship between the child and the Father, I am not satisfied that it is safe for it to continue.

The extent to which each parent has taken or failed to take the opportunity to participate in decision making, spending time with, or communicating with the child

I am satisfied the Father has failed to do so. He has, indeed, manifested that failure through his notice of discontinuance abandoning his application and these proceedings.

The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

I accept the Mother's evidence that the Father makes no financial provision for this child and, indeed, has caused nothing but mischief in the Mother's attempts to meet the child's needs since birth.

Likely effect of change including separation from either parent or other child

The Mother has a child of her present marriage and I am satisfied that the two children would enjoy a close relationship with each other.
I am satisfied that the child enjoys an excellent relationship with the Mother and with her partner.
I am satisfied and find that there would be an entirely deleterious effect upon the child of separation from the Mother, her Step Father or sibling. Further, I am satisfied and so find that there would be a detrimental impact upon the child of living in any arrangement for her care other than that presently in place with the Mother. That is an arrangement which meets her needs and which meets her meets absent involvement with her Father.

Practical difficulty and expense

I will deal with as part of s.65DAA(5);

Capacity of the parents

I am satisfied, indeed impressed, with this Mother's capacity to meet this young child's needs. She has done so in the most trying and onerous of circumstances. She has, from the time that she, herself, was a child, been involved in a relationship typified and emblematic of violence. That she has survived that relationship as well as she has is a testament to her inner strength.
The Mother has survived the relationship with the Father without support or assistance of her parents who would appear to have conspired or, at least, been co-opted in the perpetration of violence by the Father.
I have no such satisfaction as regards the Father's capacity to meet this child's needs, particularly, her emotional and intellectual needs.
The manner in which the Father has treated the Mother when she was, herself, a child is, perhaps, the best evidence one can have as to the attitude the Father demonstrates towards his responsibilities as an adult, let alone a parent, towards children, let alone his capacity to respond to a child appropriately, compassionately, empathetically or on any level that would suggest humanity.

Maturity, sex, lifestyle and background of the child

This young child requires stability and protection from the behaviours of which the Mother complaints and which she has been exposed to.
For this child to be exposed to any of the behaviours that the Mother, herself, then a child, has been exposed to, would be entirely deleterious to this child's welfare, emotional wellbeing and emotional development.
I am satisfied that whilst soever the Father’s behaviour remains unchanged that the child should have no relationship with her Father and that no order should be made which interferes in the child's present placement and regime of decision making such decisions being made entirely, as they are, by her Mother.
The child is also from an Islamic background. It would appear that the Mother will continue to support, encourage, and facilitate this child's engagement with that rich culture and important element of her identity and sense of self. It would appear that she will do so, far more appropriately than the Father would appear capable of, having regard to the Mother's evidence recited above.

Aboriginality

The child is, clearly, not from an Aboriginal Torres Strait Islander background.

The attitude to the child and responsibilities of parenthood demonstrated by each parent

The Father's attitude towards his responsibilities as a parent is entirely defective. The Mother's attitude has no criticism.

Family violence

The evidence discloses the most significant and profound level of family violence. The Mother and this child have each been exposed to that family violence.
That violence and protection from it must become the primary and most significant consideration as s.60CC(2A) dictates.

Family violence orders

There have clearly been family violence orders. Whether they remain extant is unclear but, in any event, I propose to ensure there is no uncertainty in that regard by making orders pursuant to s.68B and of the Court's own motion.

Whether it is preferable to make orders that will least likely lead to the institution of future proceedings

I am satisfied that the best I can achieve is to conclude these proceedings today, as I intend to, and to make orders that will preclude or, at least, provide remedy through officers of the police without the need for court proceedings in the event that any attempt is made to remove the child from the Mother's care.

Other facts and circumstances

I incorporate therein s.65BAA(5) being a consideration of reasonable practicality in the following terms:
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant
The parents do not live any significant distance apart, however, their current and future capacity to implement an arrangement for the child spending time with the Father is entirely problematic. Indeed, that also speaks to the issue of parental responsibility.
If an order for sole parental responsibility is made the Mother is not then subject to the obligations imposed by section 65DAC to consult and endeavour to negotiate and reach a joint and consensual decision with respect to major issues.
The Father has absented himself from involvement in those decisions, in any event, and I am satisfied that it would be entirely inappropriate, onerous and, indeed, unsafe for the Mother and/or child to be exposed to that which would be required by s.65DAC. Accordingly, an order for sole parental responsibility will be made.
I am also satisfied that both the Mother and the child would be exposed to abuse and family violence in the event that any order for time was made.
I am satisfied, further, that in the event that the child were removed from the Mother's care, either from her personally, or from the child's school, operating in locus parentis, that it would be detrimental to the child and expose the child to a risk of family violence or abuse. Thus, an order pursuant to s.68B will be made precluding the Father contacting or communicating with the Mother or attending at or within 100 metres of her, her home or the child's place of education.
The parents have no present capacity to communicate. Indeed, in light of the evidence that I have discussed above, it would beggar belief to suggest that the Mother would ever be expected to, let alone compelled by order of this Court directly or indirectly to seek to communicate with the Father.
The Father has been a most heinous, capricious, and revolting misogynist. In those circumstances, the Mother would be emotionally, if not physically, unsafe in being required to communicate with him.
As to the impact of the arrangement on the child, I am satisfied that there is a positive benefit to this child of continuing in the arrangement presently in place for her care wherein she lives with her Mother , her partner and [X]’s sibling.
I am satisfied that there would be a detrimental impact upon this child of any other order including orders which allowed or permitted a sharing of parental responsibility or time of communication with the Father.
In those circumstances, I am satisfied the orders that the Mother seeks, augmented by orders made of the Court's own motion, are appropriate.

Overseas Travel

An additional issue that has arisen is a desire by the Mother to be able to travel with the child including intended travel early in the New Year to Bali. It is a Country that is to be noted of Islamic background which faith the Mother and child practice.
I am satisfied it would be of positive benefit to the child if she were able to travel.
An order for sole parental responsibility, in the absence of any order for time in favour of the Father, would, on a strict reading of section 11 of the Australian Passports Act 2005, mean that the Mother is the sole person with responsibility for applying for or obtaining a passport for the child or giving any other consent to travel. However, s.65Y of the Act, on the basis that orders will be made by the Court today with respect to the child, would potentially preclude the Mother's travel without order of this Court or written consent of the Father in appropriate form.
To avoid future proceedings and on the basis that the child's best interests would be served by her ability to travel with her Mother I propose to make a broad and general order pursuant to s.65Y authorising and permitting the Mother's travel and noting that the Mother is, for both the purposes of the Australian Passports Act2005 and Family Law Act 1975, a person with sole parental responsibility.
Accordingly, I make orders as follows.

I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:

Date: 2 October 2013

[2013] FCCA 1525

19 September 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Jurisdiction