Gade and Jabbar (No.2)

[2016] FCCA 1892

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.2) [2016] FCCA 1892

Catchwords:
FAMILY LAW – Parenting – Where the mother seeks to have interim orders made on 31 August 2015 reversed so that instead of the children living with the father and spending supervised time with her they live with her and spend supervised time with the father – where an experts report has been ordered and where interviews are due to take place in November 2016 – whether any change of circumstances or emergence of additional information warrants considering a change to the orders prior to the experts report being obtained – no change made – where the father seeks a small variation to the orders which will permit him to travel outside (omitted) with the children periodically – orders varied as sought by the father.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Gade & Jabbar [2015]FCCA 3607

Applicant: MR GADE

Respondent: MS JABBAR

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 24 June 2016

Date of Last Submission: 24 June 2016

Delivered at: Newcastle

Delivered on: 26 July 2016

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

Solicitor Advocate for the Independent Children's Lawyer:	Ms Presker
Solicitors for the Independent Children's Lawyer:	Legal Aid NSW

ORDERS

1. The application in a case filed by the mother on 4 April 2016 is dismissed.

2. Order 2 of the orders made on 31 August 2015 is varied to provide as follows:

   The father shall have sole parental responsibility subject to the father being restrained from relocating the children’s place of residence from (omitted) or removing them from Australia.

3. The father’s application in a case filed on 19 April 2016 is otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2015

MR GADE

Applicant

And

MS JABBAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 31 August 2015 I made interim orders which provided for X, aged 9 and Y, aged 3 to live with their father Mr Gade and spend supervised time with their mother Ms Jabbar. I also made an order for the father to have sole parental responsibility for the children.

2. The mother has always been deeply aggrieved about the interim orders and she has filed several applications seeking to change them. I heard one of those applications on 24 June 2016.

3. The mother’s proposal on 24 June 2016 was that the existing interim orders be discharged, the children live with her and spend supervised time with the father and that she have sole parental responsibility for the children.

4. The father opposed this and sought to maintain the existing orders.

5. On 24 June 2016 I also heard an interim application filed by the father for order 2 of the orders made on 31 August 2015 to be varied to make it clear that he was not prevented from taking the children away from (omitted) on weekends and during school holidays. Order 2 on its face appears to prevent this.

6. The mother opposed that application.

7. The Independent Children’s Lawyer did not support the mother’s application for a change to the existing orders and did not oppose the small variation sought by the father.

8. The Independent Children’s Lawyer was of considerable assistance to the court at the interim hearing. She had inspected all the documents produced on subpoena and prepared a tender list and she made balanced, comprehensive and well thought out submissions.

Background

1. The background to this matter is set out in Gade & Jabbar [2015] FCCA 3607. Briefly, the parents are Indian. They immigrated to Australia after X’s birth and Y was subsequently born in Australia. The father is a (occupation omitted) employed by (employer omitted) and the mother is currently working as a (occupation omitted) at the (employer omitted).

2. The parents separated on 19 August 2015[1] when the father left the home with the children.

   [1] As mentioned in the previous decision there is a dispute about when the marriage broke down but this is the day the father left the home.

3. On 21 August 2015 the father filed an urgent application seeking orders that the children live with him and spend supervised time with the mother. He was particularly concerned about a text message the mother sent him in late July 2015 which said as follows:

   This is a warning.  Listen to me attentively.  I am 99 per cent sure that you have paid your brother’s fee. Either you tell the truth otherwise the day it will be 100 per cent confirmed to me on that day, I will set the house on fire, shutting myself with the children inside this house. You still have time to tell the truth otherwise think. Now, I don’t have any limit.  I need response within five minutes otherwise I’m standing next to the gas. I will set fire to this whole house.  You don’t give me the answer I have boiling oil and your son is standing beside me.  I will pour this wok over him.

4. On 31 August 2015 the mother filed a response seeking mirror image orders to those sought by the father namely that the children live with her and spend supervised time with the father.

5. I heard the competing interim applications on 31 August 2015 after the parties first attended a child inclusive child dispute conference with a family consultant. The matter was a difficult one because the mother had always been the children’s primary carer and both parents made allegations that the other had committed acts of family violence. However the text message was deeply troubling as was the mother’s inability to see that it constituted family violence. In addition the father raised concerns about the mother’s mental health and the mother had an overnight admission to the mental health unit at the (omitted) Hospital on 22 August 2015.

6. For the reasons set out in my decision I made interim orders that the children live with the father and spend supervised time with the mother and I ordered the appointment of an Independent Children’s Lawyer.

Current circumstances and events since the orders were made   

1. The father and children are currently living with the paternal grandparents. The mother continues to occupy the former matrimonial home. X attends (omitted) School and Y attends a day care centre/ preschool while the father is at work.

2. In September 2015 the father arranged for X to see (omitted) and she attended a number of sessions there.

3. On 11 October 2015 the children commenced spending time with the mother supervised by (omitted), a private supervision service and this occurred regularly until May 2016 when supervised time commenced at (omitted) Contact Service. The records of both services describe very positive interaction between the mother and the children.

4. On 13 January 2016 the mother made a complaint to police that the father had assaulted her during an argument in March 2013 by pulling her hair and slapping her to the head, face and neck about 15-20 times. Police charged the father and in April 2016 he pleaded guilty to the charges. As a result an ADVO was made for the protection of the mother. The father had not yet been sentenced when I heard the interim applications on 24 June 2016.

5. 0n 7 February 2016 the mother saw X at the (omitted) with the paternal grandmother and when X said that she wanted to go with the mother the mother left with her and took her home. The father filed an application for a recovery order and on 11 February 2016 an order was made that X be returned to the father. X was returned. Shortly afterward she ran away but she was again returned and there have been no further incidents of this kind.

6. Later in February 2016 X commenced seeing Mr W, a child psychologist and she has had a number of sessions with him. I understand that this was organised by X’s school.

7. Subsequent to the incident at the (omitted) the father made a complaint to police detailing, among other things, an incident in March 2013 which he filmed and the text message sent by the mother in July 2015.

8. On 17 February 2016 the police made a provisional ADVO against the mother for the protection of the father and the children. The mother was also charged with assault and stalk intimidate. She has pleaded not guilty to the charges and is due to appear before the Local Court on 23 August 2016.

9. The incident in March 2013 is depicted in a video which is on a USB[2] the father exhibited to an affidavit filed on 8 February 2016.

   [2] Exhibit U.

10. The video was clearly made with the mother’s knowledge because it shows her talking to the camera. At the beginning she is shown attending to baby Y with X nearby. However part way through the video she begins pacing around the room and screaming loudly in Hindi.

11. The mother can be seen wandering around the room screaming for several minutes while Y crawls on the floor and on a couple of occasions tries to pull himself up on her leg. X tries to get Y and on several occasions the mother grabs hold of X and whacks her repeatedly on the upper and lower back before letting her go. It is very unpleasant to watch.

12. Additionally concerning is the following which is included in the provisional ADVO taken out by the police:

    The footage will require an interpreter however the victim states the defendant is saying; “I cant do anything to this dog (points to the victim) but I’ll hit you, he is not signing the document I’ll kill you (pointing to X). It was my mistake when I booked those units I added his name, I’ll hit you, I can’t do anything to him but I keep hitting you (indicating to X). Watch I’ll not let her live (she was pointing to X when she was saying this to the victim).[3]

    [3] Affidavit of the mother filed 29 February 2016, Annexure H.

13. The video shows both parents in an exceptionally poor light. The mother is abusive to X and both children are exposed to her screaming and violence but the father lets it happen by filming and not intervening.

14. In the father’s defence, he says as follows in his affidavit:

    In the early part of 2013, Ms Jabbar was engaging in significant verbal and physical abuse towards myself and the children on a daily basis. I tried to protect the children from Ms Jabbar abuse as much as possible but it became increasingly difficult to do so as Ms Jabbar’s behaviour escalated.

    I felt powerless to stop her. I was completely overwhelmed by Ms Jabbar and felt unable to cope and defend myself and the children against her.

    In March 2013 I filmed Ms Jabbar assaulting the children. I did not know what else to do at that time.[4]

    [4] Affidavit of the father filed 8 February 2016, paragraphs 16-18.

The mother’s case for a change of the orders

1. During the early part of the mother’s submissions on 24 June 2016 she appeared to be arguing that the text message referred to in paragraph 11 above was inaccurately reported or was fabricated. For example she said “I didn’t send the text message” and she also said:

   I didn’t say I would burn down the house or pour hot oil on the child.

2. However part way through her submissions the mother said as follows:

   Definitely I sent him this text message but he was giving me the reply for 1 ½ months. He made a mountain out of a mole hill.

3. The mother has previously admitted on a number of other occasions, both in an affidavit she has filed and in conversation with others, to sending the text message and I am satisfied that she did so.[5] 

   [5] 11F Memorandum dated 31 August 2015, Exhibits C & R which are Letters from Psychiatrist Dr R to the mother’s GP Dr R and the mother’s affidavits filed on 17 February 2016 (various) and 13 April 2016 paragraph 11.

4. Absent a complaint about the validity of the text message the mother’s case for having the orders changed and the children returned to her care was as follows:

   a)The court was giving too much weight to the text message. In India it was common for threats of this kind to be made. She never intended to carry them out and in India no one would assume that there was any risk of them being carried out.

   b)The father’s behaviour after the text message was sent in late July 2015 suggested that he did not hold any fears for the children’s safety because of it; he had used it later for tactical reasons after leaving the home on 19 August 2015.

   c)She did not have mental health issues. Her overnight admission to the (omitted) Mental Health Unit on 22 August 2015 arose out of distress over the father taking the children on 19 August 2015.

   d)X was not coping with the change of residence and had been diagnosed with anxiety and depression and badly wanted to live with her mother.

   e)Y was not coping with the change of residence and was wetting the bed at night and also wanted to live with the mother.

   f)The father had recently been convicted of assault confirming her case that he was a violent person.

   g)The father was living with his parents in crowded accommodation.

   h)She had only ever hit X once over an issue of X wetting the bed. She had used punishment which was acceptable in accordance with practices in India.

   i)On more than one occasion during the (omitted) supervised visits X told her mother that the father was hitting her and Y and the supervisors recorded it and on one occasion made a mandatory notification to the Department of Family & Community Services (DoFACS).

   j)X had complained of the paternal grandfather hitting her, of the father and paternal grandparents denigrating the mother to her, of the father emotionally abusing her and of the father interfering with her ability to have email communication with the mother.

5. I will consider the issues raised by the mother in the context of considering the matters in s. 60CC(2) & (3) of the Family Law Act, which are the matters to which I must have regard in order to determine the children’s best interests.

The primary considerations in s. 60CC (2)

1. The mother complained that she had not had a meaningful relationship with the children since 19 August 2015 and that the father was undermining her relationship with the children by making negative comments about her and allowing the paternal grandparents to do so.

2. The problem is that the only evidence that the father and paternal grandparents are denigrating the mother is things said by X at the (omitted) supervised visits.

3. X may be reporting things accurately but I cannot rule out the possibility that she is saying things to please the mother. Dr S expressed concern in the 11F Memorandum that the mother may be trying to align X and there is more than one reference in the (omitted) Contact Service notes to the mother whispering in X’s ear. Until a full inquiry into this matter I cannot determine the weight if any I can give to things X is saying.

4. The Independent Children’s Lawyer pointed out that the (omitted) and (omitted) Contact Service notes made it clear that the mother and children interact in a very positive way during the contact visits. There is nothing in the observed interactions to suggest that the children’s relationship with the mother is being undermined, whether as a result of negative information being fed to them or for any other reason, nor is the relationship under threat because the time is supervised at present.

5. An issue in the case is whether the father’s relationship with the children might be undermined if they live primarily with the mother. I cannot make any findings about this issue at this time; it is yet another example of the complexity of this matter.

6. The mother maintained that the court was in error in concluding that she posed any risk of harm to the children. She maintained that, on the contrary, the father posed a risk of harm to them.

7. I will deal with the second point first. The only evidence in support of the contention that the father posed a risk of harm to the children is things said by X. The mother did not allege that the father had historically harmed the children, X has not suggested to Mr W during visits this year that the father is hitting or hurting her or Y and I must be cautious about placing weight on X’s utterances to the mother during the supervised visits because of the risk that they are unreliable given the high conflict situation. Similarly I cannot place weight on the things X has said at the contact centre visits about the paternal grandfather hitting her or Y.

8. I cannot be satisfied at present that the children are at risk of being abused in the father’s care.

9. I will now deal with the mother’s submission that there was no evidence that the children would be at risk of harm in her care. She submitted that the court should accept that she had no intention of carrying out the threats in the text message, that an Indian person would not see the messages as being a serious intention to cause harm, and that the father’s behaviour after the text message was received was inconsistent with his claim that the message caused him to fear that the mother would harm the children.

10. The father did not accept that the threats in the text message meant something different to Indian people and submitted on 24 June 2016 that “a threat to harm a child irreversibly is wrong in any country.” As for his behaviour after the text message was sent, he reported the matter to the DoFACS almost immediately and he rang them several times between the date the text message was sent and the date of separation seeking advice about what to do.

11. The DoFACS notes which were made following a phone call received from the father in late July 2015 (after the text message was sent) state that the father:

    … was not worried about the children who were at home in the mother’s care at that point in time but worried about when he got home and he would have to tell her that grandparents were not transferring money into the account … did have a friend he could stay with tonight if needed but he was worried that X might not go with him.

    … said that there is no diagnosed mental health conditions for the mother. Her behaviours have been ongoing for at least 2 years but that her behaviours have escalated recently and that this was due to him confronting her if she is too strict with the children and if he ca’n’[sic] comply with what she wants.[6]

    [6] Exhibit V.

12. Dr R, the psychiatrist the mother saw on 30 September 2015 and 6 October 2015, reported in letters he sent to her GP Dr R that the mother had informed him on both occasions that she had a grievance against the father over financial matters.[7] 

    [7] Exhibits C & R.

13. There was no evidence (although everything is untested at this stage and the ultimate outcome cannot be known) that the father used the text message for tactical reasons and that he did not genuinely fear for his children’s safety in the event that information about financial matters not to the mother’s liking emerged. In my view the court needs to be cautious in the light of the very alarming threats made by the mother.

14. A further issue of concern about the mother is her abuse of X in the video of March 2013. The mother is screaming and appears out of control and hits X repeatedly on the back despite being aware that she is being filmed.

15. I have yet to hear the mother giving evidence about this incident but it does not have the appearance of discipline, even excessive discipline. It looks like a lashing out in anger and until I hear some further evidence about it I cannot immediately dismiss a concern that the mother may pose a risk of harm to the children.

The additional considerations

1. The first of the additional considerations in s.60CC (3) is the views of the children.

2. X has said on a number of occasions and in a number of different settings that she wants to live with the mother.[8]

   [8] Exhibit I: (omitted) notes, Exhibit S: Mr W’s notes, Exhibit Q: (omitted) notes.

3. However X has recently been more settled in the father’s care and Mr W’s notes record as follows:

   1/4/16 – “rang and advised Dad that X much more settled and not reporting any negative issues about him or the grandmother to me.”

   7/5/16 – X told Mr W that she had made a Mother’s Day card for mum and was “getting on fine with Dad.”[9]    

   [9] Exhibit S.

1. The mother asserted that Y also wanted to live with her but that is not established by the material currently before me. Indeed on a couple of occasions it is recorded in the (omitted) notes that when X told the mother she wanted to live with her Y chipped in and said he wanted to live with the father.

2. I cannot make any findings about a number of remaining s. 60CC (3) considerations.

3. The children seem to relate well to the mother but the nature of that relationship and their preferences cannot be determined at an interim stage. Some concern was expressed in the 11F memorandum about the mother pressuring X to be on her side and burdening her with too much adult information.

4. The (omitted) and (omitted) Contact Service notes provide limited insight into the relationship between the father and the children but do not suggest that there is any cause for concern about it. The children are noted to transition happily at the beginning and end of visits. The nature of the children’s relationship with the father and the nature of the children’s relationship with their paternal grandparents cannot be determined at this interim stage.

5. The parents both appear interested in being involved with the children, I cannot make any findings about child support issues, the practical difficulty and expense consideration is not relevant and it will not be helpful at an interim stage to consider the children’s maturity sex and background as a separate issue.

6. I must have regard to parenting capacity.

7. There was nothing to suggest that the children were not being properly cared for by the father on a day to day basis notwithstanding the mother’s concerns about crowded housing. The father has either organised or acquiesced in the children receiving appropriate counselling support and Y is settled at his pre-school/day care centre. The mother’s claim about emotional abuse rests on things X has said and I cannot place weight on those at present.

8. The mother is living in the former matrimonial home and there was nothing to suggest that she would be unable to provide for the children’s day to day needs.

9. I cannot make findings about the mother’s capacity to provide for the children’s emotional needs; it would be a matter of concern if she was indeed seeking to align X but I cannot make any findings to that effect at this interim stage.

10. During the hearing on 31 August 2015 the father raised a concern about the mother’s mental health.

11. The mother does not to my knowledge have a history of diagnosed mental health issues pre-dating separation. The father’s concerns seem to arise out the mother’s behaviour (for example during the March 2013 incident, allegedly sending him numerous text messages and the content of the text message of late July 2015) together with the fact that she was admitted to the (omitted) Hospital on 22 August 2015 after the police were called to the former matrimonial home because the mother was threatening self-harm.

12. The mother has since suggested that she did not threaten self-harm on 22 August 2015 but the hospital notes record that the mother was admitted after threatening to hang herself and I cannot discount those notes at present although the matter will have to be further considered when there is an opportunity to test the evidence.

13. Since 31 August 2015 the mother has had six sessions with Dr I, a clinical psychologist and has seen Dr R, a psychiatrist, twice. Neither of those people felt that the mother’s presentation suggested that she had any mental health issues but their opinions are based on limited sessions with the mother and on the mother’s self-report.  

14. It is not open to me to make any findings about the state of the mother’s mental health at present. The report of the psychiatrist the parties are to see in November 2016, who will have the advantage of interviewing both parties and viewing and considering material not available to the mother’s treating psychiatrist or psychologist, will hopefully cast more light on this issue. 

15. I must have regard to any family violence involving the children or a member of the children’s family.

16. The father has pleaded guilty to two counts of assaulting the mother. As noted in my earlier judgment the father expressed some remorse about slapping the mother when talking to Dr S but there has been no cross-examination or close examination of the issue of the father’s violence nor will there be until the experts report is prepared and a hearing occurs.

17. The mother has been charged with stalk intimidate which may relate to text messages and with assault which as far as I am aware is in connection with the incident involving X in March 2013. Again there has been no close examination or cross-examination in respect of those matters.

18. It does appear, both as a result of the mother’s submissions on 24 June 2016 and as a result of something X said to (omitted) that there may have been another incident in which X was hit by the mother involving bed-wetting but at present I can only note this.

19. The mother still does not seem to understand that the threats in the July 2015 text message were acts of family violence. If nothing else they were made with the intention of coercing and controlling the father; the mother said as much to Dr R when she maintained that she would never have carried the threats into effect.

20. Whether the threats also posed a risk of physical harm to the children or whether they were simply words intended to coerce is not something I can determine at this interim stage.

21. There are now apprehended domestic violence orders in place, one for the protection of the mother as a result of the father pleading guilty to assault and one for the protection of the father and children as a result of the father’s complaint to police.

22. The only other relevant matter is that there are also property proceedings on foot which may be a good thing. The mother’s anger over financial matters on her own admission has fuelled conflict.

Conclusion

1. The children have been living with the father since 19 August 2015. It seems likely that X would still prefer to live with the mother but she has come to accept the current arrangement. Y also appears settled in it.

2. Since the interim orders were made on 31 August 2015 the father has been convicted of two counts of assault on the mother but in the context of this case I am not satisfied that this means that the children’s residence needs to be immediately disturbed and I cannot be satisfied on the current evidence that the children are at risk of abuse neglect or family violence in his separate care. An order has already been made prohibiting physical chastisement.

3. The children relate well to the mother at the supervised sessions but she has been charged, as I understand it, with assaulting X and that charge has yet to be determined and I cannot at this interim stage be satisfied that I should simply treat the threats in the July 2015 text message as mere words.

4. Even if they were mere words, the implications of the fact that they were made and what they say about the mother’s capacity to provide for the emotional needs of the children, to prioritise the needs of the children over her own needs and her capacity to foster a positive relationship between the children and the father are all live issues.

5. The mother’s behaviour on display in the video of March 2013 and the father’s allegations that it was merely an example of behaviour of this kind, raise concerns about the mother’s parenting capacity, especially when taken together with the threat in the text message two years later. These concerns cannot be allayed at this stage.

6. Since the interim orders were made on 31 August 2015 the mother has seen a psychiatrist and has had 6 sessions with a clinical psychologist. That is good but their assessments rely on the mother’s self-report and observations of her demeanour at the sessions and do not include consideration of the reports of others or consideration of the content of the video or other extraneous material.

7. It is rare for parents to harm children to get back at the other parent but it is not unknown and I feel a level of discomfort about the idea of changing the order for the mother’s time to be supervised at this point, let alone changing the children’s residence when the evidence suggests that they are coping with their current situation.

8. The Independent Children’s Lawyer pointed out that the (omitted) notes in particular indicate that the children are maintaining a good relationship with their mother through having the supervised visits.

9. As the Independent Children’s Lawyer submitted this is a complex matter involving allegations about family violence, alignment and parenting capacity. It is impossible to know how things will look after the experts report is obtained and the evidence is tested; I cannot determine a large number of issues in dispute nor can I determine the weight to be given to such things as the children’s views and sometimes the outcome at trial is very different to the outcome at an interim stage. At present however I concur with the view of the Independent Children’s Lawyer that it would be premature and not in the children’s best interests to change the existing interim orders.

The father’s application

1. Order 2 of the orders made on 31 August 2015 provides as follows:

   The father shall have sole parental responsibility subject to the father being restrained from removing the children from Australia or from the (omitted) area.

2. This order is not felicitously worded. It was intended to ensure that the father not relocate the children’s place of residence from (omitted) or remove them from Australia but it has been interpreted to mean that the father cannot take the children away from (omitted) even for brief periods of time for recreational purposes.

3. The father gave evidence of having in the past taken to the children to places such as the (omitted) in Sydney and to the (omitted), Brisbane, Canberra and Melbourne (where he has family) as well as camping during school holidays.

4. The mother did not seek to contradict this evidence.

5. There was nothing in the material presented to the court in August 2015 and nothing in the material presented since, which would justify an order that the father be prevented from taking the children away from (omitted) on weekends or during holidays.

6. There was nothing to suggest that the children would not be properly cared for by the father if he took them away from (omitted) for short periods and I intend to amend the orders to provide that the father is restrained from relocating the children’s place of residence from (omitted) or removing them from Australia.

I certify that the preceding eighty eight (88) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:         26 July 2016