FRANCIS & IMAIKOP
[2012] FMCAfam 873
•29 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FRANCIS & IMAIKOP | [2012] FMCAfam 873 |
| FAMILY LAW – Children – Parenting orders – best interests of the child – variation of earlier orders – violence issues – credibility issues – where family violence order in force – where it is not in the best interests of the child to spend time with the father whilst family violence order remains in force – where views of the child of the child are given significant weight. FAMILY LAW – Children – Parental responsibility – where no orders sought by either party about parental responsibility – Court not bound by parties’ proposals – Court must consider the presumption of equal shared parental responsibility when making a parenting order – where parent has engaged in family violence – where presumption in Family Law Act 1975 (Cth) s.61DA(1) does not apply – where equal shared parental responsibility not in child’s best interests – sole parental responsibility. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 68R |
| Goode v Goode (2006) 36 Fam LR 422; FLC 93-286; [2006] FamCA 1346 Imaikop & Francis [2003] FamCA 168 In the Marriage of JG and BG (1994) 18 Fam LR 255; FLC 92-515 |
| Applicant: | MS FRANCIS |
| Respondent: | MR IMAIKOP |
| File Number: | SYC 512 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 19 & 20 July 2012 |
| Date of Last Submission: | 20 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thomas |
| Solicitors for the Applicant: | Lapaine Pomare & Forster Solicitors |
| Counsel for the Respondent: | The Respondent appeared in person |
| Solicitors for the Respondent: | No solicitor on the record |
ORDERS
Orders (3), (4), (5) and (6) made on 12 February 2003 are discharged.
The Respondent Father is restrained by injunction from spending time with the child X born (omitted) 2000 or from communicating with the child in any way until 30 May 2013.
FROM AND AFTER 31 May 2013 the child X is to spend such time with the Respondent Father as she wishes and only at her instigation.
The Applicant Mother is to have sole parental responsibility for the child X born (omitted) 2000.
The Applicant Mother is released from the undertaking noted by the Court at paragraph (15) of the Orders made on 12 February 2003.
IT IS NOTED that publication of this judgment under the pseudonym Francis & Imaikop is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 512 of 2011
| MS FRANCIS |
Applicant
And
| MR IMAIKOP |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of a girl named X to vary an earlier Order of the Family Court so as to provide that the child should spend time with the Father in accordance with her wishes. X is 12 years old, having been born on (omitted) 2000.
The Father opposes this Application.
Background
The parties were married on (omitted) 1999 in Sydney. They separated on 27th December 2000 and were divorced on 24th April 2002.
The Father was born on (omitted) 1973 and the Mother was born on (omitted) 1974.
There is one child of the marriage, X, who was born on (omitted) 2000. X has lived with her mother since the parties separated.
There were proceedings in the Family Court of Australia at Sydney which were commenced on the application of the Father in 2001. After a hearing in November 2002, Chisholm J delivered judgment on 12th February 2003.[1]
[1] Imaikop & Francis [2003] FamCA 168
The Court discharged earlier orders and ordered that the child should live with the Mother. The Order which the Applicant Mother seeks to have discharged is Order 3, which provides:
3 That X have such contact with the father as the parties may agree and in the absence of agreement the following contact:
(a)Each Saturday, commencing 22 February 2003 from 11 am to 2 pm for a period of two months.
(b)Thereafter for a further period of two months, each Saturday between 11 am and 3 pm;
(c) thereafter each Saturday from 11 am to 4 pm.
In March 2010 the Father was remanded in custody for a criminal offence against another person. In June of that year, on the Father’s release, the Mother provided accommodation for him at her home for a period of three months.
In May 2011 an Apprehended Violence Order was granted against the Father in favour of the Mother and the child. This Order was in force for two years.
On 14th November 2011 the Mother commenced these proceedings. That same day Coates FM ordered that the parties should attend upon a Family Consultant for the purpose of a Family Report under s.62G of the Family Law Act and that the Father should file and serve a Response to the Mother’s Application within 28 days.
The Father filed his Response on 29th March 2012.
Orders Sought
The Mother, in her Application, seeks the following orders:
1. That Order 3 of the Orders dated 12 February 2003 be and is hereby discharged.
2. That the child X born (omitted) 2000 spend time with the father in accordance with her wishes.
The Father, in his Response, seeks these orders:
That the orders made 12 February 2003 be upheld.
In the event that the court does not uphold the abovementioned orders.
1. That the father spend time with the child:
a) in a supervised contact centre every Saturday for two hours for a period of two months.
b) following this every Saturday from 9am to 5pm for a period of 12 months.
c) Thereafter every alternate weekend from 6pm on Friday to 6pm on Sunday.
2. that the father have open telephone contact with the child via a private mobile telephone to be provided and funded by the father with such open telephone contact to commence following the completion of order 1.a).
3. That the parents have equal shared parental responsibility for the child.
Issues
The issues between the parties appear to be:
a)the inability of the parties to communicate;
b)the history of family violence; and
c)the child’s extreme reluctance to spend time with her father.
Evidence
The Mother relied on her Application and her affidavit of 4th July 2012.
The Father relied on:
a)his Response;
b)his affidavit of 2nd March 2012;
c)the affidavit of Ms H sworn 1st March 2012; and
d)the affidavit of Ms P sworn or affirmed on 28th March 2012.
The Court also had for consideration the Family Report prepared at the direction of Coates FM. This Report was prepared by Dr V and released to the parties on 23rd February 2012.
The Mother deposed in her affidavit of 4th July 2012 that the Father initially spent supervised time with the child X in accordance with the Orders made by the Family Court. Once the supervision no longer applied, the Mother observed that the child would cry and not want to separate from her, so she would attend many of the visits in order that the child would feel comfortable with spending time with her father.
From early 2004 the Father’s times with the child “became progressively less frequent and were very irregular”.[2] The child became reluctant to spend time with her father and would often refuse to go with him. Further, the Mother deposed:
There were many periods when the Respondent would not contact X or I for months at a time. There was never any consistency over the years. Very often the respondent would cancel arrangements. Many times after cancelling, the Respondent would nominate a time later the same day, and demand that I make X available. On other occasions he would just not show up.[3]
[2] Affidavit of Ms Francis 4.7.2012 at paragraph [13]
[3] Ibid
The Mother deposed that from about 2009 onwards the child was becoming more and more reluctant to spend time with her father.
The Mother stated in her affidavit that in or about March 2010 the Father was gaoled for three months for assaulting his then partner. Upon his release he was bailed to stay with a friend of his named (omitted), but when it transpired that (omitted) was away overseas the Mother allowed the Father to stay temporarily with her. The friend did not return at the arranged time, and, as a result, the Father stayed with the Mother and the child for about three months. The Mother deposed that this was very disruptive to the child, who kept asking her mother when the Father would leave.
After the Father had finally left, the child kept telling the Mother that she did not want to see the Father and did not wish to speak to him on the telephone.
The Mother deposed that she had observed the child’s behaviour to have deteriorated in 2011. She observed the child to punch her thighs with her fists, repeatedly saying “I hate myself”. In June 2011 she attempted to speak to the child about the Father on the advice of a counsellor:
X said to me words to the effect of “I don’t want to know about it. I hate him!” X ran to her room and started crying, saying “I hate myself. I hate everything. I want to kill myself”. X then sobbed uncontrollably on her bed. I just lay beside her on the bed…
I am concerned about X’s emotional wellbeing. She does not wish to spend time with (her father).
X has not had any contact with the Respondent since October 2010.[4]
[4] Affidavit of Ms Francis 4.7.2012 at [36]-[37]
The Mother gave oral evidence and was cross-examined by the Father, who appeared in person. She said that the child was attending counselling at Anglicare at her own request. She had issues about seeing her father and was very distressed. The counselling commenced in January 2011.
The Mother disagreed with the Father’s suggestions that it was not necessary for the child to attend counselling or that it had only been arranged to support the Mother’s case.
The Mother denied that she was doing anything to downplay or denigrate the child’s (omitted) heritage on her father’s side. She said that she had maintained a friendship with an (omitted) family but the child refuses to have anything to do with them. She denied that she was damaging the child psychologically. She said that, much to her horror, she did not think that the child wanted anything to do with people from a (omitted) background. The child knows that her father is (omitted).
The Father told the Court that he would not pursue his earlier applications to strike out the Family Report as not balanced or to seek the appointment of an Independent Children’s Lawyer.
In his affidavit of 2nd March 2012 the Father deposed that he denied the Mother’s allegations. He denied that he had been imprisoned but said that he was held on remand for an assault, which did not concern his daughter. He stated that the matter was currently on appeal to the Supreme Court.
He denied the Mother’s claims that she needed to accompany the child on her visits to him, claiming that she was very protective of their daughter and has “an interfering personality”.[5]
[5] Affidavit of Mr Imaikop 2.3.2012 at paragraph [10]
The Father denied the Mother’s claims that he would fail to collect the child when arranged or that he had promised to take the child to the zoo but failed to do so. He denied that the child ever appeared to be unhappy in his presence. He described the Mother’s claims as “another example of the Applicant’s exaggerated version of events”.[6]
[6] Ibid at [15] and [34]
The Father claimed in his affidavit that the Mother “has a vindictive nature”.[7] He also stated that:
The Applicant has a mental condition and has suffered from bulimia. She has a parenting style that is affected by her mental health. The Applicant has attended (omitted) Clinic and Wesley mission for psychological assistance.[8]
[7] Ibid at [37]
[8] Ibid at [36]
The Father criticised the Family Report by Dr V, which he said was not complete. He denied that he had refused to attend the interview with the Family Consultant, saying:
Not deliberately.
When asked by the Bench to explain that answer about his failure to attend the interview for the Family Report, the father said that he had been in the process of appealing against the decision of Coates FM, dismissing the contravention application he had brought against the Mother. However, “something terrible” happened on the way to the Court to attend the Appeal, which he said was on the same day as the interview for the Family Report. He said that he was driving around (omitted) Street close to (omitted) when the Police started chasing him, saying, falsely, that his car had been involved in an accident. As a result, he was unable to attend Court for the Appeal or the interview with the Family Consultant.
Ms H deposed in her affidavit that she had been employed by the Father on various contracts since 2007 and had seen him interact with the child. It was her view that:
The Respondent is a devoted and affectionate father and is always kind and gentle with X. To my observation X has always been comfortable, happy and affectionate with her father. The Applicant has also been present on a number of occasions whilst I have been with the Respondent and X. I have always observed the relationship between the Applicant and the Respondent to be respectful and amicable.[9]
[9] Affidavit of Ms H 1 March 2012 at paragraph [8]
In cross-examination, Ms H said that she had been a friend of the Father’s for some time. She had assisted to run his business when he was remanded in custody. Although she had heard that there had been a further Apprehended Violence Order made against him, this did not change her personal opinion of him.
Ms P deposed that she had known the father since 2007 and had worked for him. She described his behaviour towards his daughter in positive terms.
In cross-examination Ms P said that she had been to see the Father when he was remanded in custody in (omitted) Centre. She said it was not her business to know why he was there.
The Family Report
The Family Report was prepared by Dr V. Dr V stated in the Report that appointments were scheduled for 16th February 2012. The Mother attended with the child. A letter was sent to the father advising him of the appointment:
He did not confirm that he would be attending and when he was contacted on 14th February 2012 he indicated that I should contact his Solicitor Ms Joanne Sharah who would advise him whether he should attend. He mentioned in the telephone conversation that he was “appealing the case”.
Contact was made with Ms Sharah who advised that she had spoken with Mr Imaikop about attending the appointment.
Mr Imaikop did not attend.
In the Family Report, the Family Consultant described the issues between the parties as:
· The incapacity of the parents to communicate in a child focused way
· The level of conflict between the parents and significant others and the exposure to and involvement of X in that conflict
· X’s relationship with each parent and significant others (in particular the breakdown of X’s relationship with her father)
· X’s views given her age
· The capacity of both parties to foster X’s relationship with the other parent
· The status of X’s mental health[10]
[10] Family Report page 7 paragraph 13
The Family Consultant described the Mother as still holding considerable anger towards the Father for the distress she perceives him to have caused in her life and that of X. The Mother said that the child now categorically refuses to spend time with her father. The child “works up to a state” about the prospect of spending time with her father. On the day of the appointment, “X expressed resistance to coming and was so upset that she refused to drink or eat anything.”[11] The Mother reported that, apart from the issues regarding her father, X was generally a happy girl who had settled well at school.
[11] Family Report page 10 [24]
Dr V interviewed the child and described her as “physically mature but emotionally quite immature for her age”.[12] The child said that she had few happy memories of the time she had spent with her father in the past.
[12] Ibid page 11 [26]
The child repeated several times throughout the interview that she did not want to see her father and did not want him to come near the house.
In her evaluation, the Family Consultant noted that the assessment was incomplete due to the father’s non attendance. However, she described the parties as:
…a complex and troubled family where there has been a long history of litigation dating back to the separation of the parties…The litigation across several jurisdictions keeps them connected, albeit pathologically, to each other.[13]
[13] Ibid page 14 [36]
Dr V was critical of the Mother’s “perturbing” decision to provide accommodation for the Father on his release from custody. This provided the child with conflicting messages about the clarity of her parents’ separation.
Dr V gave this warning at paragraph [39] of the Family Report:
Each of the parties needs to be cognizant of the research that suggests that children exposed to on-going family conflict and violence are prone to suffer adverse consequences in their emotional and cognitive development. Depression, anxiety, as well as other cognitive and temperament problems are commonly seen in such children. X is already showing signs of mental health distress especially anxiety, self harm and hypervigilance which will only exacerbate if she becomes further implicated in the adult dispute or is exposed to further conflict between her parents.[14]
[14] Family Report page 15 [39]
Whilst Dr V noted that it was a significant loss for X to be denied a relationship with her father because of the implications for her gender identity, she stated that:
Pursuing further intervention with the intention of restoring X’s relationship wit her father, even if she was safe in his care, is, at this stage, likely to harden X’s resolve to maintain a distance from Mr Imaikop and evoke further rejecting and self harming behaviour. A decision on Mr Imaikop’s part to withdraw, in spite of X’s insistence that this is what she wants, on the other hand, could be seen by X as further rejection and disinterest on his part. However, this leaves X with unresolved issues and therefore continuation of therapy is highly recommended. Further more, the current position the parties find themselves in as two warring camps in their various Court proceedings does very little to allay X’s distress.[15]
[15] Ibid pages 18 and 19 [48]
The recommendations in the Family Report are that:
a)the child should continue to live with her mother;
b)the child’s views should be respected and any time she spends with her father should be at her instigation; and
c)the child should continue to receive counselling with Anglicare.
The Family Consultant was not required for cross-examination by either party.
Submissions
Counsel for the Mother, Mr Thomas, submitted that the Mother was the more truthful of the two parties and that the Father was not a credible witness. He submitted that the Father’s explanations of his failure to attend the appointment with the Family Consultant and the circumstances of the criminal charges against him from the incident involving his former partner in 2010 were untrue.
It was further submitted that the Father had failed to provide any evidence of his current living arrangements or how he would attempt to overcome the difficulties that the child in her relationship with him.
Further, Mr Thomas submitted that there was no possibility that equal shared parental responsibility was in the child’s best interests, because the parents could not communicate about the child. Thus, there should be an order that the mother have sole parental responsibility.
It was submitted that the Court should respect the child’s views as recorded in the Family Report. She is of sufficient age to have a say on what contact and communication she should have with her father.
The Father submitted that he had attended Court to have contact with his child, whom he had not seen since 2010. He is the child’s father but he was unable to see her and be a good father to her.
The Father stated that he had had a robust relationship with the Mother and they had enjoyed a good friendship. He said he had been very supportive of her.
He said that his former partner Ms C has claimed that she was hit by a belt. He was charged with detaining a person for advantage but that charge was dropped. However, he was convicted of assault.
The Father stressed that he just wanted to see his child. She is from two cultural backgrounds and taking her away from one of them is not in her best interests.
In his submission, the Father was very critical of the Mother, who he said had been coaching the child into saying the things she has. He had never had any problems with her. The Mother must be stopped from damaging the child, he submitted. He also submitted that he and the Mother should attend counselling to resolve their difficulties.
The Relevant Law
In deciding whether to make a parenting order, the Court is required by s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the objects and principles of Part VII in s.60B of the Act and the matters set out in subsections (2) and (3) of s.60CC of the Act (see Goode v Goode[16] at 436 [48]). The matters in subsections 60CC(2) and (3) are the primary and secondary considerations.
[16] (2006) 36 Fam LR 422; FLC 93-286; [2006] FamCA 1346
The primary considerations are set out in paragraphs (a) and (b) of subsection 60CC (2). They are:
a)the benefit to children of having a meaningful relationship with both of their parents; and
b)the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence, is one of the objects of Part VII (s.60B(1)(b)).
A recent amendment to the Family Law Act gives greater weight to the need to protect the child from harm. Subsection 60CC(2A) states:
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).
There are additional considerations set out in subsection 60CC (3) of the Act.
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply if there are reasonable grounds to believe that a parent or other person has engaged in abuse of the child or family violence (s.61DA (2)). The presumption may be rebutted by evidence that equal shared parental responsibility would not be in the child’s best interests (s.61DA (4)).
All of the above matters have been considered.
Conclusions
Counsel for the Mother has submitted that the Father was not a credible witness, with some justification. In my view, the Father appeared to downplay the evidence about his violent behaviour towards the Mother and his former partner Ms C.
The Father’s explanation to the Court for his failure to attend the appointment with the Family Consultant for the preparation of the Family Report was implausible, and contradicted not only by the statement of the Family Consultant in the Family Report but, more importantly, by the Father’s own affidavit filed earlier in the proceedings to explain his non-attendance. The Father did not seek to rely on that affidavit and objected to its being tendered by counsel for the Applicant Mother, but the affidavit was admitted against his objection.
The affidavit, dated 28th March 2012, was drafted by the Respondent’s former solicitor, Ms Sharah. The text of the affidavit said, relevantly:
2. I have had a lot of difficulty with the Family Court. There are a number of reasons why I did not appear to participate in the Family Report.
3. A major reason was that I felt Magistrate (sic) Scarlett was biased towards me during the contravention hearing in November 2011.
4. At the first hearing date I paid for a barrister and solicitor to represent me. Magistrate Scarlett refused to hear the matter and asked the Applicant (wife) to get a lawyer.
5. Subsequent to this I was not represented however the Magistrate allowed the matter to proceed when the wife was represented.
6. Further, during the hearing in November, I was prevented by the Magistrate from speaking on a number of occasions.
7. During the hearing in November, I was asked by the learned Magistrate why I called my daughter an (omitted) name implying that I should not be calling her an (omitted) name, but an English name.
8. Magistrate Scarlett would not allow me to see any material I subpoenaed (Anglicare Counselling Centre and Ms Francis’s psychiatric records) and I was not given a reason.
9. I believe Magistrate Scarlett is prejudiced against me because I am (omitted) and my skin colour is black.[17]
[17] Affidavit of Mr Imaikop 28.3.2012
The Respondent was mistaken in his claims about the identity of the Federal Magistrate who heard his matter. The Court records clearly show that the Respondent’s contravention Application was heard on 14th November 2011 by Coates FM.[18]
[18] It should be noted that the solicitor who prepared the Respondent’s affidavit in March 2012 did not appear for the Respondent in the contravention proceedings.
The Respondent’s explanation given in his affidavit is completely at variance with the explanation that he gave in his oral evidence to the Court. At no time in his affidavit does he mention anything about having been stopped by the Police and prevented from attending the appointment with the Family Consultant. The only conclusion to be drawn is that this account is of recent invention.
The Respondent’s claim of bias and racial prejudice by the Court is equally fanciful and is rejected. I note that the Respondent appeared not to have mentioned this explanation to the Family Consultant when she telephoned him. He did not seek to have her attend for cross-examination.
I find the Respondent not to be a truthful witness.
It is regrettable that the Respondent chose not to attend the appointment for the Family Report, as it deprived the Court of the benefit of the Family Consultant’s opinion about the Respondent’s relationship with his daughter.
The Respondent’s evidence about his living situation was also lacking. His affidavit did not even supply a home address, let alone any details of his accommodation.
In dealing with the child’s relationship with each of her parents, it is clear that she has a strong and positive, albeit enmeshed, relationship with her mother, whom she regards as the most important person in her life.[19] X identifies with her mother.
[19] Family Report, page 13 [33]
By contrast, the child’s relationship with her father is poor. She is opposed to seeing or spending time with him and has made that view very plain. She has not seen him since October 2010 and clearly does not wish to do so. She displays emotional reactions to the thought of spending time with her father or even communicating with him.
X does not have a meaningful relationship with her father and, at this stage of her life, it is difficult to see any benefit to her in having a relationship with him.
There is a need to protect the child from being exposed to, or subjected to, family violence (s.60CC(2)(b)).. The Father has been the subject of two separate Apprehended Violence Orders against him where the Mother and the child have been named as the protected persons (s.60CC(3)(k)). The first of such Orders was made on 9th February 2001, after an assault by the Respondent. The Mother’s uncontradicted evidence of the events is set out in paragraph [9] of her affidavit:
I had sustained cut lips, scratches to my arms, my right shoulder and shoulder blade and bruising on the side of my neck and to both my arms. A final Apprehended Violence Order was made on my behalf on 9 February 2001. The Orders were made for a period of two years for the protection of X and me. The Respondent was also charged with assault occasioning bodily harm and malicious damage to property. I was present in Court when he was found guilty of assaulting me.[20]
[20] Affidavit of Ms Francis 4.7.2012 at [9]
There is a current Apprehended Violence Order in force against the Respondent, which is in force until 29th May 2013. That Order was made on 30th May 2011 by the Local Court of NSW at Burwood and names the Mother and the child as protected persons. There is no evidence before this Court as to what were the circumstances in which the Order was made, the evidence admitted in proceedings for the Order, or any findings made by the Local Court other than the making of the Order itself (see s.60CC(3)(k)(ii)-(iv)).
A copy of the current Apprehended Violence Order forms Annexure “B” to the Mother’s affidavit. As well as the standard orders forbidding the Respondent from assaulting, molesting, harassing, threatening or interfering with the protected persons, engaging in any other conduct that intimidates the protected persons, or stalking the protected persons, there are three additional orders, numbered 4, 6 and 9.
The additional orders say:
The defendant must not go within 100 metres of the premises at which the protected person(s) may from time to time reside or work, or other specified premises:
- 4/19-21 (omitted)
The defendant must not approach, contact or telephone the protected person(s) by any means whatsoever except through the defendant’s legal representative or as authorised by a parenting order under the Family Law Act 1975 unless the parenting order has been varied, suspended or discharged under section 68R of the Family Law Act 1975.
The defendant must not approach the school or other premises at which the protected person(s) may from time to time attend for the purposes of education or child care or other specified premises.
Subsection 68R(1) of the Family Law Act permits a court of a State or Territory that has jurisdiction under the Act, when making a family violence order to revive, vary, discharge or suspend:
(a) a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child…
The Local Court did not, when making the Apprehended Violence Order, vary, suspend or discharge the Orders made by the Family Court in this matter.
There is also evidence that in 2010 the father was incarcerated for some months, apparently being refused bail, as a result of an assault on another woman.
The Courts have been concerned for many years about the effect of family violence on children’s welfare. In the well known decision of In the Marriage of JG and BG[21], Chisholm J said:
1. In proceedings relating to custody, guardianship and access, evidence of family violence is relevant in so far as it assists the court in determining what orders will best promote the welfare of the children.
2. The court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children. [22]
[21] (1994) 18 Fam LR 255; FLC 92-515
[22] (1994) 18 Fam LR 255 at 261
It is not the case that only violence directed at or in the presence of the child will be harmful to the child. As Chisholm J stated:
Violence occurring between household members, even though occurring away from the children, may have the potential to cause them distress and harm, for example where it affects the parenting of the custodial parent. Similarly, threats of violence may have an impact on the welfare of children.[23]
[23] 18 Fam LR 255 at 260
In this case, the father has a proven history of violence against the Mother and another woman (s.60CC(3)(j)). There is a family violence order in force against the Father naming both the Mother and the child as protected persons. These are all matters that must be taken into account for the protection of the child from harm. They are of greater weight than the benefit to the child of having a meaningful relationship with the father, which does not appear to be the case in any event (see subsection 60CC(2A)).
Turning to the additional considerations under s.60CC(3), apart from those which have already been mentioned, the child X has expressed strong views that she does not wish to see, communicate with or spend time with her father. At this stage of her life, noting that she is twelve years old, she does not want to have any relationship with her father.
The Family Consultant recommended in the Family Report that the child’s views should be respected. Those views may change in the future, but they should be given significant weight.
The child has a strong, enmeshed, relationship with her mother. The Family Consultant expressed the view that X may be identifying with some of the feelings of the Mother and the maternal extended family towards the father. She regards her mother as the most important person in her life. She has a positive relationship with her maternal grandparents.[24]
[24] Family Report page 13 [33], 15 [40]
The child’s relationship with the Father is virtually non-existent and she does not want to have a relationship with him at this time. She said that if she ever wanted to see her father again it would be when she was much older.[25]
[25] Family Report page 13 [32]
It is the child’s mother who has made the decisions about the major long-term issues in the child’s life, spent time with her and communicated with her. The Father has a history of not being available for his daughter, seeing her only sporadically and constantly changing or cancelling arrangements.
The Mother is the one who is largely responsible for maintaining the child.
The likely effect on the child if orders were made requiring her to spend time with her father would be one of emotional damage. It is not recommended by the Family Consultant.
The parties’ history is that there has been difficulty in the Father spending time with the child, brought about by the sporadic nature of his communication with her and his aggression towards her mother.
It is the Mother and the maternal grandparents who have provided for the child’s physical, emotional and intellectual needs, and they are the ones to whom she looks for nurture and support. The child appears to be frightened of her father and opposed to spending time with him, which allows the inference to be made that he lacks the capacity to provide for her emotional needs.
X is a girl aged twelve years and four months old. She was born on (omitted) 2000. She was described by the Family Consultant as “physically mature but emotionally quite immature for her age”.[26]
[26] Ibid page 11 [26]
Her mother is European Australian and her father is from (omitted). Although the Mother gave evidence that she is trying to encourage X’s interest in her (omitted) heritage, she is resistant to it and wants nothing to do with anyone from (omitted).
The Mother’s attitude to the child and the responsibilities of parenthood is demonstrated by the fact that she has been the child’s primary caregiver all her life. She has given evidence of attempting to support the child’s relationship with her father, even though he had been violent to her.
The Father’s attitude to the child and the responsibilities of parenthood emerges as deficient in some areas. There is unchallenged evidence of his unreliability in spending time with the child in the past, and his efforts to involve her in discussions about the Court proceedings.[27]
[27] Affidavit of Ms Francis 4.7.2012 at [31]
The difference between the two parents’ attitudes is well illustrated by the Mother’s evidence at paragraph [15] of the Mother’s affidavit, which the Father denied in his affidavit:
I encouraged the Respondent to be more consistent in the time he spent with X and to organise activities which X would enjoy. I often said to him words to the effect: “You have to be more consistent, you have to see X more regularly otherwise she just refuses to go with you. You have to build a relationship with her”. He would reply words to the effect “She’ll be right. She will come or I’ll make her come. She’s a kid and she’ll do what I say”.
The evidence supports the view that the Mother, notwithstanding her differences with the Father, has attempted to foster and encourage a relationship between the child and her father, at least up until 2010.
It is also significant that the Father did not attend the interview for the Family Report. His various explanations for not doing so are unsatisfactory, to say the least. He was legally represented at the time. It is unlikely that his then solicitor would not have advised him about the importance of participating in the process of preparation of the Family Report. He was legally represented when he made his affidavit of 2nd March 2012, but that affidavit does not contain any helpful information about the Father’s current situation. Rather, it consists of denials, statements that he did not know and could not admit, or allegations about the Mother’s mental state.
It would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child (s.60CC(3)(l)). Such a result is not always possible to achieve, as it always open to a party to appeal or apply to vary orders in the future.
That said, what the Court can do is make Orders that are clearly intended to be in the best interests of the child. At this time in her life, X’s best interests will not be served by remaining in contact with a father who has a history of violence against women, including her mother. X is female, and she needs to live in an environment where violence by men towards women will not be tolerated by society.
Until this child has confidence that neither she nor her mother, her primary caregiver, will be subject to or exposed to violence or verbal aggression by her father, she will not be able to have a loving or supportive relationship with her father.
Parental Responsibility
There was no Order relating to parental responsibility in the Orders made by the Family Court on 12th February 2003, which is unsurprising. Counsel for the Mother submitted during the hearing that equal shared parental responsibility was impossible and impracticable, as the parties cannot communicate. The Father seeks an order for equal shared parental responsibility in his Response.
The Court has an obligation, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. The Court also has an obligation under subsection 61DA(1) to consider the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this case, the presumption does not apply, because there are reasonable grounds to believe that the father has engaged in family violence (s.61DA(2)).
The parents have a troubled relationship and cannot, in my view, communicate in a child focused way about the child. There is a high degree of conflict between them and there is a history of litigation between them. Even if there were no family violence issues, the evidence is sufficient to satisfy the Court that it would not be in X’s best interests for her parents to have equal shared parental responsibility for her.
The child’s mother should have sole parental responsibility for her.
Orders to be made
Whilst the Apprehended Violence Order made by Burwood Local Court on 30th May 2011 remains in force, there should be no parenting order permitting the Father to spend any time with the child or to communicate with her. The order expires on 29th May 2013, at which time the child will be just over 13 years of age. It would not be in her best interests for her to even have to contemplate the prospect of spending any time with the father or having any communication with him before then.
From 30th May 2013, the child may spend time with her father or communicate with him, but only if she instigates such action herself. Until she feels comfortable in having a relationship with her father, no pressure should be placed on her to do so.
The Family Consultant has recommended that X should continue to receive counselling with her counsellor at Anglicare, and this recommendation is endorsed. It does not appear necessary to make an order to this effect and is should be left for the Mother to decide when the counselling should cease, after consulting the child’s counsellor.
Order 3 made on 12th February 2003 will be discharged. It follows that Orders 4, 5 and 6 should also be discharged, as they relate to the implementation of Order 3.
The Orders made by Chisholm J included two notations, one of which contained an undertaking by the mother:
That the mother undertakes to give to X letters, cards and gifts sent to X by the father, and for that purpose to provide to the father an address to which he may post such letters cards and gifts to X.
In view of the decision that it would not be in the child’s best interests to even contemplate the prospect of having any communication at all with the Father, and even then only at her instigation, before 30th May 2013, there is no use in requiring the mother to adhere to that undertaking.
The Mother is released from her undertaking.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 21 August 2012
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