Gbenga and Sunette
[2013] FamCA 49
FAMILY COURT OF AUSTRALIA
GBENGA & SUNETTE [2013] FamCA 49
FAMILY LAW – CHILDREN – Child related proceedings – Evidence relating to child abuse or family violence – Best interests – Risk – Parental Responsibility – Presumption of equal shared parental responsibility – Rebuttable presumption – With whom a child lives – Family violence – With whom a child spends time – With whom a child communicates – Best interests of a child
FAMILY LAW - FAMILY VIOLENCE - Where the father has a criminal record - Where family violence occurred towards a child – Where family violence occurred towards the mother – Where a complaint had been made against the father
Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 60D, s 60DA, s 60DAA
Prince & Walsh [2012] FamCA 275
APPLICANT: Mr Gbenga
RESPONDENT: Ms Sunette
INDEPENDENT CHILDREN’S LAWYER: Michael Emerson
FILE NUMBER: BRC 10263 of 2009
DATE DELIVERED: 8 February 2013
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Forrest J
HEARING DATE: 25, 26, 27 and 28 October 2011 REPRESENTATION
FOR THE APPLICANT: Mr Gbenga in Person
COUNSEL FOR THE RESPONDENT: Ms Cuthbert of Counsel
SOLICITOR FOR THE RESPONDENT: Richard Gray & Associates
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Emerson Family Law
Orders
(1)The mother have sole parental responsibility for the children, B born … May 2006 and D born … August 2007.
(2)The father’s application for parenting orders in respect of the said children is dismissed.
(3)The father, Mr Gbenga, is restrained and an injunction is granted restraining him from:
(a)approaching or coming within 500 metres of the mother’s residence or place of employment; and/or
(b) approaching or contacting the mother in any other way; and/or
(c)approaching, communicating with, or contacting any other person so as to have them approach, communicate with or contact the mother or the children.
(4) The Independent Children’s Lawyer is discharged.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gbenga & Sunette has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT BRISBANE FILE NUMBER: BRC 10263 of 2009
Mr Gbenga Applicant
And
Ms Sunette Respondent
REASONS FOR JUDGMENT
1.Mr Gbenga, (“the father”) applies to the Court for orders that permit two of his children to spend time and communicate with him. I do not consider that it is in their best interests to spend any time with him or to have any form of communication with him. Their mother, Ms Sunette, (“the mother”) suffered appalling violence, abuse and deprivation at the hands of the father just after he brought her as his wife to this country from their native Africa. Fortunately, whilst pregnant with their second child, she managed to escape from that horror, taking their baby with her. She has stayed in hiding from the father since.
2.Initially, after that separation, the mother struggled to parent her two boys whilst coping with severe depression and social isolation, all the time aware that the father was trying to locate her and being terrified of the likely consequences if he did.
3.I am satisfied that she would not cope, psychologically, if this Court required her to make her two little boys available to spend time with their father or to communicate with him. I am satisfied that the risk to the boys of them suffering emotional harm or even physical harm if they are to communicate with or spend time with their father is an unacceptable one. That risk, I am satisfied, outweighs the benefits they might get from spending time and communicating with their father. That is why I am dismissing the father’s application.
Some background facts
4.Mr Gbenga, who, in these reasons I shall call “the father”, is 44 years of age. He was born in Africa and came to Australia 15 years ago, in 1998, as a refugee: having fled from armed conflict in that part of his native land where he had lived. He had been married twice in Africa before he came to Australia. He and his first wife, who still lives in Africa, have a child, a boy, H, who was born in July 1995 and is now nearly 18 years of age.
5.The father and his second wife, who came to Australia with him in 1998, and who still lives here, also have a child, a boy, C, who was born in March 1997 and is now nearly 16 years of age. C’s mother swore an affidavit that the father filed and relied upon at the trial in this matter. She was cross-examined and did not impress me as truthful. I shall say more about this later.
6.In 2005, having separated from his second wife, the father returned to Africa for a short visit and married Ms Sunette, who, in these reasons I shall call “the mother”. They did not know each other but agreed to marry upon arrangements being made between their families, as is apparently a common feature in their particular African culture. The mother was almost 25 years of age at that time.
7.They married in August 2005 and the father returned alone to Australia less than a month later. The mother was pregnant with their first child when the father left and their son, B, was born in May 2006 in Africa.
8.Arrangements were put in place for the mother to travel with the baby, B, the father’s eldest son, H, as well as an older cousin of the father, to take up residence with the father in Brisbane in October 2006. The father had been living and working in Brisbane for about 8 years by that time and had acquired some English language ability. The mother had no English language ability when she arrived in Australia with her 10 year old step-son and her five month old baby.
9.By the end of the year 2006, the mother was pregnant again with their second child. Their second son, D, was born in August 2007, some 4 months after the mother had left the father and gone into hiding.
10.The father has not seen the mother, save via video link at the trial of these proceedings, nor his son B, since the separation. He has never seen his son D.
11.Some time after the mother left the father, he again travelled back to Africa and, during his stay there, married another African woman: his fourth wife in less than 15 years. She has also had the father’s fifth child,[1] but she and that child remain in Africa, apparently unable to travel to join the father in Australia as he says he would like. At the trial, the father conceded that he had never been in the physical presence of that child.
[1]The mother gave evidence that she believed the father had another child, a second child by the woman who was his second wife, and a full brother to C. That woman does have a second son but there was no admission by the father or by her that her second son was the father’s child. Although, the evidence pointed that way, I do not make a finding that he is the father’s child.
12.The father filed an application in the Federal Magistrates Court in Brisbane for parenting orders in respect of the two children he fathered with the mother. He filed that in November 2009, more than two and a half years after the mother had left him and gone into hiding. A location order was made, a Commonwealth information order was made and the mother was eventually located. An Independent Children’s Lawyer was appointed and the matter was transferred to this Court in mid-2010.
13.The matter was originally listed for trial in March 2011 but when the matter came before me for hearing that day, the father’s solicitor sought and obtained leave to withdraw and the trial was consequently adjourned. It was eventually heard over four days in October 2011.
14.At the trial, the mother was represented by solicitor and counsel, funded by Legal Aid. There was an ICL with counsel and the father was unrepresented. The mother’s counsel and solicitor were in Court in Brisbane. The mother appeared by video link from an interstate Registry of the Court. The other parties were all physically present in Court in Brisbane.
15.Language E is the first language of the mother and the father. Properly qualified, accredited Language E interpreters are difficult to find in Australia. A Language E interpreter had been arranged by the Court to attend the Court in Brisbane and interpret for the father. Another Language E interpreter had been arranged by the Court to attend at the interstate Registry and interpret for the mother. At the commencement of the trial, the father refused to use the services of the female interpreter who attended at the Court on the grounds that he had previous contact with her in the community. After some discussions, the interpreter was excused and the interpreter in the other registry agreed to interpret for both parties and the Court. All parties accepted those arrangements and the trial commenced.
16.At the end of the trial, I reserved my judgment and I granted an injunction restraining the father from approaching or contacting the mother or having any third party approach or contact the mother. That injunction has remained in place since then.
17.I appreciate that it has taken me fifteen months to deliver this judgment. The pressure of hearing other trials and deciding other cases has prevented me from reaching this one in that time, even after I had determined that I would be dismissing the father’s application. I regret the delay and any unnecessary distress that it has caused the parties to the case beyond that already experienced by them through their involvement in the proceedings. As I have, since hearing the case, intended to dismiss the father’s application I have considered any impact caused by the delay to be mitigated by that fact.
The evidence of the mother and the father about their time together and my findings about that
18.The mother said the father was kind enough to her whilst they were together in Africa at and around the time of their marriage and during the time after he returned to Australia when they communicated by phone about once per week. During that time though, the mother said that she met the father’s first wife who, the mother said, warned her of the father’s violent nature, telling her that he had once stabbed her with a knife in the upper leg when they were together and their child was young.
19.When the mother arrived in Australia with their baby, the father’s eldest son and the father’s cousin, they all moved in to a two bedroom unit the father was renting in an inner suburb of Brisbane. There were already two other people living in that unit with the father, thus taking the number of occupants to seven. The two other people left about one month after the mother’s arrival. She said they left because of the way the father treated them.
20.The mother said the father’s ill-treatment of her began soon after she arrived in Brisbane. She said that the father would go off to work, and if his eldest son was at school and his cousin out at work or school, he would lock her and B in the unit. When he was at home, he would not let her go anywhere and he would regularly punch, hit and slap her. He would also hit her with an electrical cord. Although she tried to keep the baby safe by putting him in the bedroom, the father often beat her with the baby in her arms.
21.She said that he seriously restricted the amount of food that she was allowed to eat and that she was allowed to give the baby. He would only provide her with wheat and barley flour for an African bread/pancake and lentils. He would measure out the amount of ingredients she was permitted to use. She used to have to resort to taking extra pieces of this food when the father was asleep. Her breast milk dried up but then he would restrict her to giving the baby only two bottles of formula per day. He also restricted the amount of food that his older son and cousin could eat and often mistreated, abused and beat them as well.
22.She said that in the period of about four weeks after she arrived, the father beat her about once per week. After he started going off to work, about a month after her arrival, she said the beatings increased up to about three times per week. As well as beating her, the father would take her into the shower and put a cotton African style scarf around her neck, pulling it tight as if he was going to strangle her. He would tell her he was going to kill her and punch her face and under her jaw.
23.After the mother became pregnant, in late 2006, the father would, she said, consciously not punch or hit her in the stomach, so as not to cause the mother to miscarry. However, he still refused to let her eat more food. When she was about four months into the pregnancy, the father took her to see a doctor. She weighed only 40 kgs and, according to the mother, the doctor advised her to go into hospital as the baby was not growing at the right rate. She said that in hospital she was to be on a drip but the staff had real difficulty finding a vein to attach a drip to. She was discharged and told to eat and drink more than she was.
24.The mother said that the father never arranged to have an interpreter for her, saying he spoke and understood English well enough. Accordingly, all she was ever told, came through the father. She believes he was very selective in what he told her.
25.She said that on a couple of occasions when the father took her out of the unit, he took her to parkland or woodland and, after accusing her of having had affairs whilst in Africa without him after their marriage, beat her again. On one such occasion, the mother said the father told her to hurry up and clean up the blood that had come from her face because he wanted to go home.
26.The mother said that the father sexually abused and raped her. He would force her to drink whiskey, even whilst she was pregnant. After his eldest son had gone to bed and his cousin had gone out of the unit, on a regular and frequent basis, the father would put on pornographic videos, force her to watch them with him and then force her to act out the sexual acts they saw in the videos. He would force her to perform fellatio on him, then rape her, sometimes anally. The mother said that it was not uncommon for baby B to be crying in the bedroom on these occasions but that the father would not let her go to him to comfort him.
27.The mother said that on an occasion the father forced her to leave the unit with him, leaving the baby B in his cot, whilst the father’s eldest son was asleep in the other room. He took her on a train and they were gone for a couple of hours. At parkland they went to, he punched her and said he would kill her. When they got home, B had a leg stuck between the bars of his cot and was totally distressed. His brother had not attended to him.
28.The mother said the father also held a knife to her, threatening to kill her with it on more than one occasion. Another time, he took her to a doctor, telling her it was to have a DNA test to determine if he was B’s father. He told her that if the test proved he was not B’s father, he would kill B and then her. He then took her and the baby to a police station, telling her the police were going to tell him the results of the DNA test. He then took the mother and B to a deserted area and told her the police had told him that B was not his son. The mother said she was terrified he was going to kill them and she began to scream. He told her to keep quiet or he would kill them, then took them home.
29.The mother said her teeth used to bleed and became wobbly as a result of being hit in the mouth so often. She said the father took her to a dentist who told them it would cost $3,000 to fix her teeth. She said the father abused the dentist, believing they were entitled to free dental care. When they left, the mother said the father abused her, blaming her for the fact that the dentist would not give her free treatment.
30.The mother said that she lived in constant fear of the father, often thinking about how she could escape from him. She said she often experienced numbness, shaking, vomiting and high temperatures. She constantly worried about her baby, B, and the baby she was carrying. She said that one night, after the father’s eldest son had gone to sleep, the father told her to sit on the sofa, closed all the blinds and the curtains and turned off the lights. He then put on white gloves, that he possessed for his job, and took a knife from the drawer and approached her. He again accused her of having an affair in Africa before she came to Australia. He said to her that if she did not admit to the affair that he would kill her. She said he stood over her with the knife and she just braced herself to be stabbed. He then threw the knife on to the floor. He then left the flat and paced around and around the perimeter of the building. He did not go to work for three days, keeping constant watch on her.
31.The mother said that after three days, the father again went to work. He came home from work at 4:00 am, woke her and forced her to have sex with him. He then ordered her to go back to sleep and went to sleep himself. The mother said that when she knew he was in a deep sleep and it was becoming light outside, she quickly got out of bed, tied the baby to her back with a shawl and left the unit wearing their night attire and with no other possessions. She said that she ran to a bus stop and got on the first bus that came along. She had no money for the fare and could not speak to the driver. When he spoke to her she began to cry. She was allowed to stay on the bus and stayed on until everyone else was off, not knowing where she was. She said she got on to another bus and it went into the city. A woman noticed she was crying and offered to help her. The mother said she knew the word “Immigration” and just kept asking to be taken to “Immigration” as she wanted to ask “Immigration” to send her back to Africa.
32.The mother said that in one of the CBD department stores, some people assisted her to get to “Immigration”. There, an interpreter was arranged, and the mother, after telling her story, was told that she did not have to return to Africa. Help was arranged for her and she was placed in a women’s refuge.
33.The mother said that she was given assistance and support and gradually she has been able to get her life back into order. She learned, in time, that the father was trying desperately to find her. She has lived in fear of him finding her and she has done all she could to remain hidden from him. He tried, through contact with her family in Africa, to find her. He tried through contacts in the Australian particular African community to find her. He has, from time to time, found her mobile telephone number and called her. She has felt devastated and scared each time that he has managed to contact her. She has, with assistance, been able to move away from Queensland in an attempt to avoid the father finding her location.
34.In stark contrast, the father denied each and every one of the allegations the mother made about his abuse and violence and the way he treated her. He said the mother clearly never loved him and just used him as a means of getting to live in Australia and is just lying about these things so as to prevent him having a relationship with their two sons. When he cross-examined her, he spent an enormous amount of time and energy questioning her about her escape, challenging the veracity of the evidence she gave about the buses, the help she got and going to “Immigration”. He even vociferously asserted, without having put any relevant evidence before the Court or being able to point to any rational basis for his belief, that the mother had drugged him to make him sleep through her escape. He asserted that she had planned her escape with assistance from others.
35.Interestingly, the father put to her that she had obtained help to leave him from leaders of the particular African community in Brisbane, and, in a moment of apparent candour, he told the Court that leaders of that African community in Brisbane had actively lobbied the Australian Government not to permit the father to bring another wife from Africa to Australia. As he said that he has not been permitted to bring his fourth wife to Australia yet, it may be that such evidence is true and that the lobbying has worked.
36.However, despite what the father said, particularly his denials of the many allegations of heinous conduct levelled at him, I believed all of the mother’s evidence and did not believe any of the father’s denials.
37.Although the mother gave her evidence by video link and although the parties both spoke in Language E that was interpreted to me by an accredited independent interpreter arranged by the Court, I was very satisfied that the mother was giving truthful evidence and the father’s evidence was full of false denials.
38.There was complete congruence between the body language and demeanour of the mother and the story she was telling. The opposite was the case with respect to the father.
39.The father displayed no remorse for his actions. He demonstrated no shame or personal discomfort in respect of the behaviour for which I accept he was responsible. There was no evidence before the Court that such behaviour by a man towards a woman is culturally “acceptable” in the particular African culture, even if it might be acceptable for women to be subservient to men in some African communities. I very much doubt that it is. The mother’s own reactions and responses to it convince me that it is not. Simply put, the behaviour that I am satisfied the father subjected the mother to is not acceptable by any standards known to this Court. It has, unsurprisingly, had a dramatic impact on the mother and, I am satisfied, on the two boys. It is central to the determination of the outcome of this case.
Other relevant evidence
40.Documents from the records of the Queensland Department of Child Safety (as it used to be called) were obtained by subpoena and admitted into evidence (exhibit 3). They reveal the father’s eldest son, H, was put in the care of the Department in 2008 because of excessive physical discipline that he was being subjected to at the hands of the father. The boy had reported it to staff at his school who notified the Department. The boy disclosed to Departmental staff that his father had “always hit” him – with “sticks and cords and stuff”. He disclosed that his father had slapped his face and kicked him because he had worn the wrong shirt. It is also recorded that the boy told staff at his school that he has seen the father stab his mother, a piece of information consistent with the mother’s evidence: that the boy’s mother informed her in Africa that the father had stabbed her once.
41.The Departmental records report that the father denied ever hitting the boy, asserting that the boy never misbehaved and did not need disciplining. At the trial, the father conceded that his eldest son was still in the care of the Department, apparently not knowing exactly where the boy was living and having no communication with him. He asserted that the boy had been brought up without discipline in Africa by his mother, explaining what the father asserted was the boy’s poor behaviour and ill-discipline. The Department’s records reflect that the boy did not want to see or speak with the father or return to his care. They reflect that the boy had also complained of being poked by his father with an electric cattle prod on occasions in the past as a means of discipline. Whilst the father said he wanted to get the boy back into his care, he could not tell the Court of anything he was doing to achieve that.
42.The father’s criminal history was admitted into evidence as part of exhibit 3. It revealed that the father had been convicted in 2002 and again a year later in 2003 of entering a casino whilst he was subject to a formal exclusion order. Nevertheless, the father denied having any gambling problem.
43.The criminal history also revealed further convictions. The father was convicted in the District Court in Brisbane in August 2009 of offences of common assault and indecent treatment of a child under the age of 16. Those offences occurred in April 2006. This was only a few months before the mother came to Australia. The father said that he pleaded guilty to the charge having been told to by his barrister. He denied having committed the offences.
44.Details of the offences as alleged by the prosecution were included in the documents admitted into evidence. On the night in question, it was alleged the father picked up two 12 year old girls in school uniforms as they approached a Brisbane bayside railway station quite a long way from the father’s home suburb. One child sat in the front passenger seat, the other in the back. The father stopped at the station and asked the girl in the back seat to get out and go and check the platforms to be able to tell him which way it was to the city. Then the father placed his hand on the leg of the child in the front passenger seat and grabbed her hand and placed it on his penis but on the outside of his pants. The child immediately removed her hand from there and the father again grabbed her hand and put it on his penis a second time. The child removed it again.
45.The second child then came back and got in the car. The father drove to another nearby railway station and asked the back seat passenger to get out again and go check the platforms. She did get out and walk over to the platforms. The father then leant over and kissed the front seat passenger on the lips and placed his hand under her shirt and grabbed her on the breast. The other child returned and the father drove off again.
46.Shortly thereafter, the father was apprehended by police whose attention he came to because he was driving with L plates on display and with no obvious supervising adult. The father conceded that he only had a learner’s permit at that time and was, therefore, driving unlawfully. When police noticed the two school girls in the car with him they took them all to a nearby police station. It was here the child, who the father had allegedly assaulted and indecently dealt with, complained to police. He was subsequently charged.
47.Although the father pleaded guilty to those facts, he told this Court during his evidence at the trial that he was trying to find his way to another suburb and asked the girls if they could direct him. He said they smelt of petrol, as if they had been sniffing the substance. He said that he did stop and ask one of the girls to get out and check the platforms to determine which direction it was to the city and whilst she was out of the car his mobile phone rang. He said that he grabbed the hand of the passenger in the front seat and put it on his mobile phone in his pocket, through his pants. He denied the balance of the allegations that formed the substance of the charges to which he had pleaded guilty. Nevertheless, on his own plea of guilty, he had been sentenced to two years of probation.
48.I did not accept that the evidence he gave about the circumstances of those offences was truthful. Under cross-examination by counsel I considered him to be evasive and vague in his responses to questions about the matter. He shamefully attempted to discredit the character of two 12 year old school girls and blame them for the circumstances in which he found himself.
49.Further, the father’s criminal history also revealed that the father had been convicted of breaching his bail by leaving the country, and travelling back to Africa in 2009, prior to his charges being dealt with in the District Court. That was probably the trip that he made back to Africa, during which he remarried and conceived his youngest child. No conviction was recorded against him for that breach and he was not punished any further for it.
50.The evidence of the father’s relationship with his second wife and their son, C, was also quite disturbing. That evidence came from the father, the second wife herself, the mother and the records of the Department of Child Safety.
51.The father filed an affidavit sworn by his second wife, Ms T, on 22 June 2011. It is a very brief affidavit but in it Ms T deposed to the father regularly spending time with their son, C, on the weekends: C looked forward to his weekly visits with his father. She deposed that the father has never hit her or C to her knowledge and that he has adequately provided for them. She said that she and the father remain good friends, that their marriage did not end because of any bad treatment by the father and that she does not feel threatened by him.
52.The father, in his own affidavit sworn 30 November 2010, said that he was seeing C and Ms T nearly every day at that time and that the child sometimes visits him. However, under cross-examination at the trial, the father gave some inconsistent evidence about his time with his son. He said that he had moved residence about two years before, so about October 2009. He went on to say that he not seen very much of C since that time. Then, when confronted with the inconsistency in his evidence, the father asserted he had not seen C at all since May of 2011. The mother’s evidence was that in all of the time she had lived with the father, from 2006 to 2007, the boy C, had never come and spent any time with his father or his brothers.
53.Documents from the Department’s file that were admitted into evidence revealed that the father had been at Ms T’s residence on 20 November 2009. At about 9:00 pm C became involved in a minor argument with his little brother and the younger brother began to cry. The notes record that the father has become angry with C, cursed him and then picked up a metal spoon from the kitchen bench and hit C on the side of the head with it. The boy then ran outside and straight to a nearby police station and reported his father’s abuse of him. The child told police that the father had been abusing him like that since he was a small child and that he did not want to see him again.
54.In his evidence at the trial, the father denied hitting the child deliberately with the spoon. He said the spoon had accidentally fallen from his hand and hit the child in the head. I did not believe that evidence. The Departmental records reveal that Ms T demanded the father leave her residence that night and that he did.
55.Departmental records also contained information about earlier contact with the father in respect of the child, C. On three separate occasions in 2002 and 2004, notifications were received indicating that when the child was in the father’s care he was not collected by the father from a child care centre at the end of a day; had been left unattended outside the cinemas at the Myer Centre in the city for some hours; and was being left unattended and locked in the family residence whilst his parents were out for a few hours at a time.
56.There was confusion surrounding Ms T’s attendance at Court during the trial. She did not attend when the father said she was expected. She came at another time, stayed around and left the Court’s precincts without being told she was not required. When she finally came back to Court and gave oral evidence, I formed the impression that she was scared and intimidated by the father. She constantly looked to him with an expression of some anxiety on her face before she answered any questions under cross-examination. She gave very unconvincing denials of the father’s violence towards her and C, saying he had not hit C with a spoon, even though she had not seen what happened. She even told the Court that C told her that his father had only accidentally hit him with a spoon. Such a version of events is completely inconsistent with the actions of the boy running to the police station and reporting his father for hitting him and the mother subsequently asking the father to leave the residence. I accept that happened. Ms T said that she thought the child had run to the police station simply because he was young and a child. I do not accept Ms T’s denials and find that she was acting in fear of the father, being intimidated by him, when she was giving her evidence to this Court. I am satisfied that the father has been abusive to his son, C, and also to Ms T. I do not accept that they have a good relationship and I find that the father and C do not have an ongoing meaningful relationship.
Expert Evidence
57.The Court had the benefit of a report from a psychiatrist who had been treating the mother since the middle of 2010. Her report confirmed that the mother had complained to the doctor, of all the same allegations she made in these proceedings: violence; rape; deprivation and ill treatment - suffered at the hands of the father. The doctor reports that when the mother first presented she was extremely thin, anxious and frightened. She was living in isolation and afraid to have contact with the particular African community for fear the father would find her. She dressed to disguise herself. She was diagnosed then with major depression precipitated by trauma and her situation was desperate, said the doctor.
58.The doctor reported that the mother has, over time, responded well to anti-depressant medication and begun to function at a much higher level, although she still deals with her fear of the father constantly. The doctor reported that when she saw the mother in December 2010 she was fully compliant with her treatment, very positive about her relationship with her children and apparently now coping with the normal challenges of motherhood.
59.However, the doctor said in her report and in her oral evidence that the mother remains extremely fearful of any contact with the father or of him having any knowledge as to her whereabouts and these fears are not part of her depressive illness. The doctor advanced the opinion that there is no evidence that the mother is thought disordered or delusional, presenting typically as someone who has been traumatized over a prolonged period. The doctor concluded her report by expressing the opinion that it would be detrimental to the mother’s health to be forced to encounter the father during the Court proceedings and she asked for her own identifying data to be withheld from the father so it might not assist him in tracing the mother’s whereabouts.
60.In her oral evidence, the doctor said that she thought that any threat of contact between the mother and the father brings on stress in the mother and that if it became chronic, it might precipitate another episode of mental illness. She said that contact between father and children could lead to a complete decompensation on the mother’s part that could deleteriously affect her parenting of the children.
61.The father cross-examined the doctor but unsurprisingly did not cause the doctor to modify her opinions in any way. I accept the doctor’s opinions. They appeared completely explanatory of and consistent with my own observations of the mother’s behaviour during the four days of the trial.
62.An affidavit was sworn by a counsellor from a foundation for the survivors of torture. She had tertiary qualifications in psychology. The foundation was providing counselling and support to the mother in 2010. The counsellor’s observations and reporting was consistent with the psychiatrist’s to whom the counsellor had referred the mother for treatment.
63.Another affidavit was sworn by a social worker who had been working with the mother and her children since late 2009. She observed at that time that the child B’s behaviour was extremely challenging. She expressed the view that the consensus of expert opinion obtained at that time was that the child’s behaviour could be the result of violence he witnessed and experienced as an infant. I make no finding on that without direct expert evidence being put before me.
64.She reported that the mother had been linked to community and more formal support networks, had established good relationships with medical and allied health professionals, child care services and physical activity outlets for the boys. She reported that the mother has engaged well with her supports, has followed through with behavioural strategies in respect of her eldest child, has been attending group sessions to benefit her boys and has worked hard to ensure their safety.
65.The social worker reports having seen first hand how these proceedings have impacted on the mother. Although her observation of the mother is that she has, over time, grown in confidence, she says that each time this case is discussed with the mother, or the father is mentioned, she notices a change in the mother. She becomes less animated and less engaged with the social worker and her children. The social worker said that she considers the progress the family is making is set back in such circumstances. I do not doubt that.
66.Finally, the ICL commissioned a family report from an Accredited Mental Health Social Worker, Dr R. Dr R has undergraduate degrees in Arts, majoring in psychology, and Social Work with first class honours. She has post-graduate qualifications in the form of a Ph.D. She interviewed the parties and saw the mother with the children. She did not interview the parties together or see the father with the children. The positions the parties respectively outlined to Dr R mirrored their respective cases in this Court.
67.Dr R reported that she observed the children to appear engaged with their mother and comfortable in her company. They were well dressed and provided for with packed lunches and activities to keep them busy whilst the mother was being interviewed.
68.Dr R expressed the opinion that the father’s behaviour, in the way he answered her questions, particularly about the reasons for the failure of his relationships and the reason why his eldest son had been taken into Departmental care, is suggestive of avoidance of the matters that might be counter to his desired presentation. She said that he actively promoted himself as the victim of an obstructive and self-serving woman.
69.Dr R proffered the opinion that the father’s complete denial of any violence or threat thereof, poses a significant barrier to his receiving any treatment for the problem.
70.She concluded with the observation that the level of risk to the children if they were to spend time with their father is assessed as being very high. She said that any change to the circumstances that the mother had been able to put and keep in place since she escaped from the father’s abuse would “negatively impact on her mental health and her ability to parent.” The highest contact that the social worker recommended at the end of her report was correspondence via an independent body or person such as the ICL or a contact centre, with the rider that any such correspondence be independently perused before going to the mother and children.
71.However, in her oral evidence, Dr R said that she had now had the opportunity to consider the material produced on subpoena by the Department of Child Safety. She said that after considering that evidence about the extent to which the father had violated the rights of children without any acceptance of responsibility for such behaviour she no longer even considered censored correspondence with the children to be in their best interests. She said that any benefits to the children from such contact would be heavily outweighed by the detriment they would suffer if their mother’s parenting capacity was again compromised, which is exactly what any form of communication would risk.
72.Again, I accept the recorded observations and opinions expressed by Dr R.
The father’s position
73.The father gave evidence that he had a car accident in 2007 and has not been able to drive or work since then. He is only in receipt of a pension income from the Commonwealth Government. The mothers of all of his children, including the mother in this case, do not receive any meaningful financial support at all from him for their children. That is very unfortunate.
74.The mother lives with the children interstate and a long way from Brisbane. Faced with that fact, the father still indicated that he only had the capacity himself to see the children in Queensland. The mother is also only currently in receipt of pension income from the Commonwealth Government, although she said she wants to gain skills in order to get employment to help provide for her children.
75.The reality is that neither party could afford to facilitate any travel for the purposes of the boys spending any time with their father, even if it was considered to be something that was in their interests. However, that is what the father told the Court he expected to happen so that he can spend time with the two boys. Again, that was demonstrative of a lack of insight on his part as to the reality of their circumstances.
A summary of the principles by which this matter is to be decided
76.In Prince & Walsh [2012] FamCA 275 at [18] to [21] I discussed the principles by which parenting cases are to be determined. That was as follows:
18.Part VII of the Family Law Act 1975 (“the Act”) sets out the statutory framework within which parenting orders are to be made by the Court. The Court is given discretionary power to make such parenting orders as it thinks proper.[2] In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration[3] and must apply a rebuttable presumption that it is in the best interests of a child for its parents to have equal shared parental responsibility in respect to that child.[4] The Court must, having regard to the objects of Part VII[5] and the principles underlying those objects[6], consider certain express “primary” considerations[7] and “additional” considerations[8] in determining what is in the child’s best interests. The Court must also consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in respect of some further particularly identified matters[9].
[2]Family Law Act 1975 (Cth) s 65D.
[3]Family Law Act 1975 (Cth) s 60CA
[4]Family Law Act 1975 (Cth) s 61DA
[5]Family Law Act 1975 (Cth) s 60B(1)
[6]Family Law Act 1975 (Cth) s 60B(2)
[7] Family Law Act 1975 (Cth) s 60CC(2)
[8]Family Law Act 1975 (Cth) s 60CC(3)
[9]Family Law Act 1975 (Cth) s 60CC(4)
19.The presumption referred to does not apply in circumstances of abuse or family violence[10]or may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility for that child.[11]
[10]Family Law Act 1975 (Cth) s 61DA(2)
[11]Family Law Act 1975 (Cth) s 61DA(4)
20.If an equal shared parental responsibility order is made the Court must consider whether the child spending equal time with each parent is in the child’s best interests and is reasonably practicable. If satisfied as to both, then the Court must consider making such an order and, if not, then must consider whether the child spending substantial and significant time with each parent is in the child’s best interests and is reasonably practicable. If satisfied as to both of those matters, the Court must then consider making such an order (s 65DAA).[12] Determination of the reasonable practicability of equal time or substantial and significant time with each parent is made by reference to the factors identified in s 65DAA(5).
21.If an equal shared parental responsibility order is not made then the Court may make such parenting orders as it considers proper by regard to the best interests of the child.
[12]Family Law Act 1975 (Cth) s 65DAA
77.I refer to that summary and simply confirm that remains the process by which this case is to be determined.
78.The presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them is clearly rebutted in this case. I am also quite satisfied that it is not in the best interests of these children for the two parents to share parental responsibility. There is no way, having regard to the violence in the relationship between the parents and the father’s absolute failure to admit it, and therefore, to be able to address his problems, that the mother could be expected to have to work with the father to jointly make decisions about the major long-term issues in relation to these children. I will make an order that the mother have sole parental responsibility for these boys.
79.Having then to turn to consideration and determination of the proper parenting orders having regard to the best interests of these children, I cannot, in this particular case, go much beyond my findings about the violence and the abuse that the father exposed the mother to over a relatively brief marriage relationship and the father’s propensity to similar violence and abuse in his relationships with his other wives and their children, as well as other children. Those findings and the expert evidence that I have read, heard and accepted convince me that the best interests of these children require maintenance of the stability that their mother has so carefully and meticulously been able to create, with the support of others around her, since she was able to escape from the father. That stability and the well-being of the mother and the two children would be, I am satisfied, put at serious risk if the mother is required to facilitate any communication between the boys and their father or the boys spending any time with their father.
80.Supervision of time is, in my mind, no answer to the unacceptability of the risk that would be created. I am satisfied that there is a high probability of the mother completely decompensating and experiencing further psychiatric illness that would seriously, if not totally, compromise her capacity to care for the children if orders are made for the children to even have supervised time with the father.
81.The children spending time with the father is not at all practicable and would create completely unacceptable risks to their well-being. I will not be making any orders for them to spend any time with the father.
82.I am also satisfied that the same risks to the mother and children apply if the father is to communicate with the children in any form on an ongoing basis. I do not consider it practically viable or appropriate in the long-term for a children’s contact centre or the ICL to be an intermediate, independent censor of correspondence between the father and the mother and the children. I certainly would not expect an ICL to be funded for such work, nor do I consider it a proper part of the professional duty of an ICL. As to a contact centre doing that job, there is absolutely no evidence upon which I could even begin to rely in order to determine that such a proposal would work. Language issues significantly add to the absolute lack of viability of such a proposal. I will not be making any orders for the father to be able to communicate with the children in any way.
83.The father’s application will be dismissed. The mother will be given sole parental responsibility for the children and the interim injunction that I granted will be made on a final basis. I finish with the observation that these orders that I intend to make also accord with what the ICL submitted should be the outcome of the proceedings.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 February 2013.
Associate:
Date: 8 February 2013
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