Gade & Jabbar

[2015] FCCA 3607

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR [2015] FCCA 3607

Catchwords:
FAMILY LAW – Interim Parenting.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Goode & Goode (2006) FLC93-286

Applicant: MR GADE

Respondent: MS JABBAR

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 31 August 2015

Date of Last Submission: 31 August 2015

Delivered at: Newcastle

Delivered on: 31 August 2015

REPRESENTATION

Solicitor Advocate for the Applicant: Ms Martz

Solicitors for the Applicant: NLS Law

Solicitor Advocate for the Respondent: Ms Furner

Solicitors for the Respondent: Baker Love Lawyers

ORDERS

1. The children X born (omitted) 2006 and Y born (omitted) 2012 live with the father.

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

3. The children shall spend time with the mother supervised at (omitted) Children contact centre or other contact service agreed to by the parties.

4. Each party shall prompt undergo any necessary intake procedures at (omitted) Children’s or cooperate in undergoing any necessary contact preparations with any other person or at any other place at which it is agreed contact should occur.

5. Pursuant to s.68L of The Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children X born (omitted) 2006 and Y born (omitted) 2012 and the Legal Aid Commission of New South Wales is requested to provide such representation. 

6. The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing Orders and copies of any relevant reports

7. The Independent Children’s Lawyer has liberty to apply to relist the matter at an earlier date than the next adjourned date should the Independent Children’s Lawyer consider it necessary to do so.

8. Each of MR GADE and MS JABBAR and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2006 and Y born (omitted) 2012 from the Commonwealth of Australia.

9. X born (omitted) 2006 and Y born (omitted) 2012 be and are hereby restrained from leaving the Commonwealth of Australia.

10. It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s names on the Watch List for a period of two years.

11. Upon expiration of the period referred to in Order 9 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List.

12. The matter is adjourned to 9.30am on 10 November 2015 for further consideration.

THE COURT NOTES THAT:

1. The family consultant has recommended the preparation of a Chapter 15 Expert Report. The court is of view that the parties may well be in a position to be able to pay for the preparation of such a report and they are strongly urged to turn their mind to obtaining such a report so that this issue can be productively discussed on the next adjourned date.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar 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. These reasons for judgment were delivered orally and have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. In this matter I have to make a decision about what is to happen to two children X and Y who are nine and three years old respectively.

3. The matter has come before me on an urgent basis and as a result the material that has been filed by both parties is not as extensive as might be desirable. Often when matters come before the Court urgently the parties’ affidavits are not as extensive as they could be and the Court simply has to do the best it can based on the material that has been filed.

4. I do also have though the assistance of a lengthy and thorough child dispute memorandum prepared by a family consultant earlier this afternoon. Of course the family consultant can offer nothing but preliminary views but it does provide some insight into the matter because the family consultant has had the opportunity to speak to the parties. It is an advantage that she has that I do not have because the only thing I know about the parties is what is contained in their affidavits which are in turn filtered through solicitors. I also know a little bit about the matter from the submissions that were made.

5. Nevertheless I have to make a decision about what is to happen to these children on what I would remind the parties is a fairly short-term interim basis because this matter clearly requires further investigation.  Dr S suggested that it needed an expert’s report and in due course we will have to explore whether the father at least has some capacity to pay for that given that $130,000.00 in cash is floating around somewhere. It also needs the assistance of an Independent Children’s Lawyer.

6. The father proposes that the children should live with him, that he should have sole parental responsibility and that the children should spend supervised time with the mother. The mother’s response is a mirror of that. She proposes that she have sole parental responsibility, that the children live with her and that they spend supervised time with the father. 

7. I do have to wonder if the mother has put much thought into the proposal that the father spend supervised time with the children. There does not seem to be much in the material to suggest that that was a necessary outcome for the children’s safety. 

Background

1. The very brief background to the matter is that the parties - according to the information in the father’s affidavit at least and I only have that and his initiating application to go on because the mother filed a response which did not require her to comment on the accuracy of that information - according to the father’s affidavit the parties commenced living together at the time of their marriage in 2002 and finally separated in August 2015 and I do not know that there is much dispute about that. 

2. The parties are both from India and at some point they migrated to Australia. Their oldest child, X, was born in India. Their youngest child, Y, was born in Australia. There is a dispute as I understand it or at least I cannot make any findings about the breakdown of the marriage. The father told the family consultant that the marriage was effectively over 18 months ago.  I am not necessarily sure that the mother agrees with that but on any view whether it is the oldest daughter’s view or the parents’ view there appears to have been a lot of conflict in this relationship.

3. The parents have separated and it is a fairly recent separation. The mother is living in the former matrimonial home. The father has left the home and is currently looking for somewhere permanent to live. It would appear that he has been moving around a little bit with the children.

4. When the father left the home he took the two children with him and he immediately filed his application in this Court. It is his case that the mother has mental health issues and that she has made threats to harm the children and he is also concerned that she may left to her own devices try and take the children back to India. It is his case that the children should live with him where they are safe. They are not at risk of being removed from Australia and they are not exposed to any difficulties with the mother’s mental health.

5. The mother’s case effectively is that she has been the children’s primary carer and that she has never harmed a hair on the children’s head and has only made some threats to get the father’s attention but she would never actually carry those threats into effect and it is her case that the children must be missing her. 

6. The little boy must be missing her and X told the family consultant she wanted to live with her mother and that the children should be returned to her.

7. No explanation was given by the mother either in her affidavit or during submissions about why if the children lived with her the father’s time with the children should then be supervised but I simply note that in passing. 

Disputed and undisputed matters

1. These are interim proceedings and in interim proceedings the Court usually cannot make findings about matters that are in dispute. It is a serious mistake though to think that the Court can ignore matters that are in dispute. The Court must have regard to allegations. If allegations are serious and if true mean that children could be placed at risk of harm then sometimes the Court has to err on the side of caution until it can get to the bottom of the truth of the allegations. The Full Court has also made it clear that the Court is entitled to make some assessment of probabilities in deciding what to do with allegations.

2. The case of Goode & Goode[1] says that I need to follow a pathway in trying to determine this matter. I have to consider the parties’ applications and I have referred to those. I have to consider the disputed and undisputed facts. 

   [1] Goode & Goode (2006) FLC93-286

3. There are a lot of disputed facts in this matter.  There is a dispute about the extent to which the father has perpetrated family violence on the mother during the relationship. There is a dispute about the extent to which the mother has been violent during the relationship. There is a dispute about whether the mother suffers from any mental health issues. 

4. There are some undisputed matters and they are important as well. 

5. Although I said the family violence was in dispute, there are a couple of family violence allegations that are not in dispute or at least cannot reasonably be disputed.

6. One of those is that the father admitted to the family consultant that he hit the mother on one occasion. The mother says she was slapped.  The father said that he expressed a little remorse for this action and his text message to the mother could be seen in that light. 

7. The issue in the case is whether the mother’s allegations about much more extensive family violence including an incident in July 2015 are made out. I will come back to that in just a moment because I talked about the assessment of probabilities and I just want to turn to the allegations about the mother. 

8. The mother vehemently denied that she had ever been violent to the father or that she was a violent person. However she made a very serious threat in August 2015 and the mother needs to understand the seriousness of that.

9. The father filed an affidavit with a translation from Hindu of the text message the mother sent him and I just want to turn that up for a moment.  What the mother said to the father is this:

   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.

10. In s. 4AB of the Family Law Act family violence is defined and this is what it says:

    For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful.

11. There is absolutely no question that sending that text message was an act of family violence for two reasons:

    a)The very intention of the mother in sending it was to coerce and control the father

    b)Second, X was scared. She told the family consultant that and it is referred to in the memorandum. She admitted to being a tiny bit scared during that incident but quickly stated that she felt safe with her mother.

12. The mother needs to understand that she committed an act of family violence in sending that text message. There is absolutely no question that there has been family violence and given my finding about that, which is the only finding open to me, I cannot then just lightly dismiss the father’s other claims about the mother’s behaviour to him during the relationship or his allegations that he has been harassed by huge numbers of text messages. 

13. It might turn out on examination of the matter that the other allegations are untrue or exaggerated but I cannot just lightly dismiss them in the light of the fact that that text message was sent. 

14. So I have a situation where the father has admitted an act of family violence and it might be the tip of an iceberg but the mother has also committed a serious act of family violence and it might be the tip of another iceberg. 

15. The other undisputed fact, of course and the father makes no bones about it, is that the mother has always been these children’s primary carer. The mother says that flowing from that is the fact that it may be distressing for the children if they live primarily with the father and see little of her in the future and that certainly is a possibility that I will have to bear in mind. 

16. The other undisputed fact, though, is that the father makes allegations about the mother’s mental health and the family consultant, perhaps because of the nature of the text message and the other allegations said that it was something that needed to be investigated and I also have the fact that about a week ago someone was sufficiently concerned about the mother to call the police and she was taken to the (omitted) Mental Health Unit and kept there overnight. 

17. Whether that is any indication that there is a problem I cannot tell at the moment so the whole mental health issue has to remain an issue in dispute but given the fact that the mother was taken to that hospital, it is certainly an issue that needs further investigation. 

18. It is against that factual background that I have to make a decision about what should happen to these children. 

The children’s best interests

1. Any orders I make about the children must be determined by treating the children’s best interests as the paramount consideration. S.60CC(2) and (3) of the Family Law Act set out the things to which I must have regard in order to determine the children’s best interests. 

2. Usually when dealing with matters of this kind on an interim basis the Court can make few findings about the s.60CC (2) and (3) matters. The primary considerations are the benefit to the children of having a meaningful relationship with both of their parents. In this particular case I have two very intelligent highly educated parents, a very intelligent little girl and potentially a very intelligent little boy but he is probably too young to be showing signs of what he can do at the moment.

3. So I have a situation where you would normally expect these children would benefit from having both of their parents in their lives. That will only be the case though if the parents are able to focus on the children and put their needs first and not be sidetracked by adult issues.

4. I also have to have regard to the need to protect the children from being subjected to or exposed to abuse, neglect or family violence. 

5. The difference between the parents in that respect is this, thinking it through:  the mother makes some allegations about the father having been violent. I cannot determine whether that is true or not but if it is, the parents have separated.  There is no evidence the father is a person of violent propensities outside the relationship so in the immediate future I need not be concerned, in my view, about the children being exposed to family violence in the father’s care just in the immediate future, which is until I can get an Independent Children's Lawyer and have some further investigation.

6. I cannot say the same about the mother because the mother has made that dreadful threat.

7. It might be that she would never have carried that into effect. That is what she tells me but I cannot determine at present whether there is absolutely no risk of that or whether there is some risk of it if the mother feels aggrieved and the mother does appear to have a lot of grievances against the father. 

8. I have some concerns about the children’s safety with the mother given that that threat was made.

9. I also have some concerns about the mother’s capacity to provide for the emotional needs of the children.

10. Even if that threat was not intended to be carried into effect and was simply intended to frighten and coerce the father – even if that was the case – what that says is that rather than focusing on her children the mother was using her children as a tool to get the father’s attention.  It is deeply concerning.  It raises a grave concern in my mind about the mother’s capacity to provide for the emotional needs of the children. 

11. There is also the issue raised in the memorandum about the mother involving X in knowledge of the Family Law proceedings and in, perhaps, knowledge of her grievances about the father and his family.

12. I have those concerns about the mother’s capacity to provide for the needs of the children. 

13. The mother raises concerns about the father’s capacity because of his mobility issues, his need to work and his lack of accommodation, and I accept that all of those things are relevant. The mobility issues I am not greatly troubled about to be frank but the accommodation issue and the father’s need to work does affect his capacity to care for the children but the father seems to be managing that just at the moment and I am only making some very short-term orders.

14. I do not accept there is the same level of concern about the father not being able to provide for the emotional needs of the children as there is about the mother.  I do not consider that the fact that he removed the children from the mother despite her being the primary carer means that I should be deeply concerned about his capacity to provide for their emotional needs just at the moment. 

15. I really cannot make too many other findings about the s.60CC (3) matters.

16. I accept that X was very clear to the family consultant that she wanted to live with the mother.  I have some evidence about her views but there is also a suggestion she may have been burdened by being told about the mother’s issues and so the weight I can place on X’s views is something I can not determine just at the moment. 

17. That is the findings I can make about the s.60CC (2) and (3) matters.

Parental responsibility

1. I have to consider the issue of parental responsibility.  Both parents sought an order for sole parental responsibility.

2. It does appear to me at the moment that the parents are in such different places and spaces that it is not going to be easy for them to share parental responsibility for the children. There is also established family violence by both of them so the presumption in s.61DA does not apply.

3. I intend to make an order that the parent the children solely live with have sole parental responsibility but it will be tempered around by some provisions about people not being able to leave (omitted) and I am also going to make a Watch order of course so the children cannot leave Australia.

Conclusion

1. The mother says that the children should go back to her because she has been their primary carer and emotionally that would be the best place for the children to be. She says the children must be missing her.  I accept that the children may be missing the mother.  X certainly appears to be. I cannot be sure to what extent her views have been influenced by information she has been given but the mother has on any view been the primary carer.

1. It is a significant change for the children to be moving to live primarily with the father.  It is also a significant disruption for them because they have left the former matrimonial home and the father does not have a fixed place of abode for them just at the moment. It is a significant change for the children and if I could safely leave the children with the mother then that is what I would prefer to do but the mother has made that very serious threat and I have concerns about the state of her mental health which I cannot immediately resolve.

2. The mother just does not seem to understand the seriousness of the threat that she made, something that is commented on by the family consultant but what concerns me about that threat is what it says about her using the children as a tool in her relationship with the father and what it says about the extent to which she is able to focus on the children’s own needs and what has been happening with X given a lot of information about the Family Law matter augments that concern.

3. I cannot at the moment make an order that the children live primarily with the mother.  There are too many question marks, too many issues of concern for the children.  There is nothing in the evidence to suggest that on a day-to-day basis the children are going to be unsafe with the father or that he is going to use them as a tool in any battle with the mother. So in the very short-term it seems to me that despite the disruption for the children the only order I can make in a very short-term is for the children to remain with the father.

4. It also follows from what I have said that I have no option at the moment, at least for the immediate future until I can get an independent children's lawyer involved but to make an order that the mother’s time be supervised.  There are a couple of reasons for that.  There is the risk of harm / mental health issue, which I can not put to rest at the moment and there is also a concern about X continuing to be given extensive information about the Family Law matter, which could be emotionally burdensome for her and which will be avoided if there is only supervised time.

5. It is not an ideal outcome and I want to stress at this stage that I have limited information about this matter.  I have dealt with matters over the years where things have appeared one way at an interim basis and then when I have obtained a report and had people in the witness box, everything has flipped around and the matter looks completely different.  I have no option though but to act on the basis of what is before me just at the moment.

6. I am going to adjourn the matter to 10 November 2015 at 9.30 am, which is the earliest date I can give and it should also allow an independent children's lawyer to become involved.  I am going to note that the family consultant has recommended the preparation of a chapter 15 expert report.  The Court is of the view that the parties may well be in a position to pay for the preparation of such a report and they are strongly urged to turn their mind to obtaining such a report so that this issue can be productively discussed on the next adjourn date.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Date: 12 April 2016