Golby and Nayar

[2014] FCCA 2789

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOLBY & NAYAR [2014] FCCA 2789

Catchwords:
FAMILY LAW – Parenting – father in prison for offences committed against the mother – father seeking an order that the parties child aged 2 be brought to the prison once a month to visit him – application opposed by the mother.

Legislation:  

Family Law Act1975 (Cth), ss.60CC, 61DA

Applicant: MS GOLBY

Respondent: MR NAYAR

File Number: NCC 3108 of 2013

Judgment of: Judge Terry

Hearing date: 12 September 2014

Date of Last Submission: 12 September 2014

Delivered at: Newcastle

Delivered on: 12 September 2014

REPRESENTATION

Solicitor Advocate for the Applicant: Mr Handebo

Solicitors for the Applicant: Resolve Family Law

The Respondent: In person

ORDERS

1. The child, [X] born [omitted] 2011, live with the mother.

2. The mother have sole parental responsibility for the child.

3. All outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

THE COURT NOTES THAT

(a)The mother is facilitating the child having telephone communication with the father while he is in prison and further consideration of the father’s time with the child will occur if the father makes an application for parenting orders after his release from prison.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT NEWCASTLE

NCC 3108 of 2013

MS GOLBY

Applicant

And

MR NAYAR

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. I am required to make a decision about a limited issue concerning [X], who is two years and 10 months old.

3. [X]’s father is in prison. The end date of his sentence is September 2016 but he is eligible for parole on 7 June 2015 and he hopes that he will get out of prison then.

4. The father has not spent any time with [X] since his arrest in December 2013 when she was just over two years old.  He will not be out of prison until June 2015 at the earliest and as I indicated on the last occasion I intend to make final orders today that the child live with the mother and that the mother have sole parental responsibility for her.

5. Because of the violence that occurred during the relationship the presumption of equal shared parental responsibility in s.61DA of the Family Law Act 1975 does not apply and it is appropriate that I make an order that the mother have sole parental responsibility for [X]. However as I indicated to the father on the last occasion once he is released from prison we can have another look at the matter and the order for sole parental responsibility can be reconsidered if necessary. I will settle these reasons so that the father will be able to refer to what I have said today if he asks for that order to be reconsidered after he is released.

6. I do not intend to make any orders today about [X]’s time with the father upon his release. The mother is willing to consent to an order that [X] spends supervised time with the father upon his release but for reasons to be given later I am not prepared to make such an order. That does not mean the parents cannot organise it but I am not going to make an order about it and I will explain why a bit later on.

7. The issue I have to decide today is whether I should order that [X] be taken to the prison once a month for the next nine months, if it is only nine months that he remains in prison, to see the father.

8. The father would like that occur. He proposes that the paternal grandmother bring [X] to the prison although he is not opposed to the mother doing so.

9. At present the father is in [B] Gaol. He says that this not a suitable place for children and he does not want [X] to visit him there. However he hopes to get a transfer to [C] Gaol and he says that [C] Gaol has an open visiting area which is child friendly where [X] will not be exposed to a lot of bars and wires. The father says that [C] Gaol is set up for family visits. 

10. The father is hopeful of getting a transfer to [C] either if the Court makes an order for [X] to visit him once a month or alternatively after he does three months in [B] regardless of whether the Court makes an order about [X] visiting him or not.

11. The mother is facilitating [X] talking to the father on the phone from prison and she takes her to see the paternal grandparents but she does not consent to an order that [X] be taken to the prison once a month to visit the father.

12. The mother lives on the Central Coast. It would take her about an hour and a half one way to travel from to [C] in order to facilitate the visits. 

The evidence

1. The mother relied on her application filed on 20 December 2013 and her affidavit filed on 20 August 2014.

2. The father relied on his amended response and affidavit filed on 5 August 2014.

3. The father took part in the hearing by telephone and the mother and her solicitor attended in person. The parties were each cross-examined.

Background

1. The mother is 24 and the father 32. They commenced a relationship in 2010 when the mother was 20 and the father 28 and [X], born on [omitted] 2011, is their only child.

2. The relationship was on and off. According to the mother the parties separated prior to [X]’s birth, reconciled after her birth and then had an on and off relationship which finally ended in October 2013.

3. [X] has always lived with the mother. 

4. The father has always been interested in [X]. He is proud to be a father and I accept that at one point he did a parenting course.

5. Until October 2013 the mother facilitated the father spending time with [X] when the parties were not together. Between October and December 2013 the relationship between the parties was quite conflicted and I am not 100 % certain what time if any [X] spent with the father during that period.

6. The mother alleged that there was a history of violence in the relationship. 

7. The mother alleged that in August 2012 the father pushed her, grabbed her by the throat and kicked her repeatedly in the leg which resulted in her suffering injuries including bruising. She reported this incident to police but no charges were laid. The mother said that this was because the incident happened in Queensland and immediately after the incident the parties returned to New South Wales.

8. The father said that I should not believe the mother because he was not charged but the fact that the father was not charged and the fact that the police did not take photos does not mean that the incident did not occur. 

9. The mother gave evidence of a number of occasions when the father subjected her to violence. The only incidents the father admitted to were the ones which led to him being charged and convicted but I do not accept that the mother fabricated, in the kind of detail that appears in her affidavit, the other allegations of violence. It simply does not make any sense and I accept the mother’s evidence about the incident in August 2012.

10. The mother said that the day after that incident there was another incident where the father confronted her and grabbed her phone and threw it. The father did not dispute that this occurred and an Apprehended Domestic Violence Order (ADVO) was taken out against him at that time.

11. The mother alleged that during this incident the father knocked over [X]’s pram with [X] in it. The father denied this but I have absolutely no reason to suppose that the mother would have simply made that up to embellish her story and I accept her evidence about that.

12. The mother alleged that in April 2013 there was an incident at her work where the father assaulted her and she suffered bruising and scratches. The evidence she gave about things the father said to her during that incident paints a picture of him as being obsessive and jealous.

13. The mother reported this incident to the police.  

14. The mother alleged that the father subsequently broke into her home and took some of her shoes but later gave them back to her. 

15. The mother alleged that in November 2013 the father again broke into her home and this time took some of her jewellery and clothing.

16. The father denied all of those things but I have absolutely no reason to believe that the mother would have fabricated these detailed allegations.  

17. The events which led to the father’s imprisonment occurred in December 2013.

18. The father telephoned the mother and found out where she was and then went to where she was. When he arrived the mother was holding [X]. The father tackled the mother to the ground and the mother and [X] both fell over. The father then grabbed the mother’s phone and ran off.

19. The mother got into her car and drove away but the father followed her in his motor vehicle and tailgated her car. There was swerving and overtaking.  [X] was in the car and the father yelled out something to the mother about taking [X]. That ended and then there was a second pursuit. 

20. The mother reported the incident to the police and said that [X] was very scared that night. 

21. The father admitted that this incident occurred but he seemed entirely switched off to the fact that he could have seriously injured not only the mother but his daughter on that occasion. It is mere chance that something really bad did not happen to his daughter.

22. The father was arrested the next day after going to hospital as a result of being stabbed. He was apparently stabbed by an ex-boyfriend of his then girlfriend.

23. The father was charged with two counts of common assault and one count of contravening an ADVO committed on 19 April 2013 and two counts of common assault, two counts of stalk initimidate and harass with the intention to cause fear and one count of driving while disqualified committed on 4 December 2013.

24. The father was sentenced on 20 June 2014. He was fined in respect of the April 2013 offences and sentenced to terms of imprisonment in respect of the December 2013 offences. His sentences expire on 6 September 2016 and there is a non-parole period which expires on 6 June 2015.

25. [X] has had no face to face contact with the father since his arrest in December 2013. The mother said that she recognised him in photos and had had some phone contact with him.

26. Against this background I have to decide whether to make the orders the father seeks about [X] visiting him in prison once a month.

[X]’s best interests

1. Any orders I make about [X] must be orders determined by treating her best interests as the paramount consideration and to determine [X]’s best interests I must have regard to the matters in s.60CC(2) and (3) of the Family Law Act.

2. The primary considerations in s.60CC(2) are:

   a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

3. S.60CC(2A) says that I must treat the consideration about the child not suffering physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence as more important than the consideration about her having a meaningful relationship with both of her parents. That was a change to the law which came into effect on 7 June 2012 because of a concern about whether Courts were treating seriously enough the issue of family violence which sadly is rampant in our community.

4. There will obviously be no risk of [X] being subjected to or exposed to abuse or family violence if she sees the father for a couple of hours while he is in jail. There will be prison guards around. That just is not going to happen but it is not the be all and end all of it.

5. The whole issue of family violence in this case is deeply concerning for a number of reasons.

6. It is exceptionally damaging for children to be exposed to family violence. Research suggests that it causes changes in their brains. 

7. The person perpetrating the family violence is an extremely poor role model for a child. 

8. Family violence can result in children being killed. [X] could have been killed or physically injured during the incident in December 2013 when the mother was tackled to the ground while holding her or when the mother was tailgated and there was swerving and cutting off. [X] could have struck her head on the ground. The mother could have driven into a lamppost.  The father completely lost sight of [X] during those incidents.

9. I do not accept the father’s denials that the other incidents of violence alleged by the mother occurred. [X] was present when the mother was assaulted in August 2012. I also accept the mother’s evidence that on the occasion at the shopping centre when the father snatched the phone he also pushed [X]’s pram over; again [X] could have been physically injured. It is only sheer luck that she wasn’t.

10. The father says that the problem is that he and the mother are a volatile combination. It is his case that nothing like this would happen if he and the mother were not together. However I cannot be sure of that. 

11. There are some indicia in the mother’s evidence that this  relationship involved coercive and controlling family violence and that the father was jealous and obsessive. That is very concerning, because if someone is prone to that sort of behaviour and mindset there is a high risk that they will behave in the same way in other relationships. 

12. I cannot be sure that it is only in the context of this relationship that the father is likely to be violent.

13. An additional concern is that the father just does not seem to really engage with the fact that he subjected his child to family violence in December 2013. He could have injured or even killed her and he just does not seem to engage with the seriousness of his behaviour.  

14. What all that means is yes, [X] might be safe if she saw the father in jail, but I cannot be sure given the state of the evidence that there is value to [X] in the longer term in having a relationship with the father at all. That is something which will have to be considered once the father gets out of jail and we can properly investigate it. I cannot be satisfied at the moment, given the violence allegations, that [X] would be safe with the father if she spent unsupervised time with him or even that he is a suitable person to have in her life.  It is that serious.

15. I must have regard to the additional considerations in s.60CC (3) but as the mother’s solicitor rightly pointed out a lot of them are not particularly relevant given the narrow issue I have to decide or alternatively I cannot make findings about them. [X] is too young to have a view about the issue in dispute and things like the father’s capacity to financially support the child are not relevant to the issue I need to decide.

16. One s.60CC (3) factors which is relevant is the nature of the relationship between the child and each of her parents.

17. I have no reason to doubt that [X] has a good relationship with her mother.

18. I cannot be sure about the nature of [X]’s relationship with her father.

19. The mother agreed that [X] recognised the father’s photo and was excited about seeing it and had asked if he was coming to see her. The mother also said though that [X] was very scared after the incident in December 2013 so I cannot be certain how [X] would react to the father if she actually saw him face to face, and she has not seen him face to face for some considerable time.

20. Another relevant consideration is the likely effect of any change in the child’s circumstances. 

21. If [X] commences seeing the father at the prison that will be a change in her circumstances and I cannot be sure that it will be a positive change.

22. It might be a positive change if [X] has fun with the father – although she wouldn’t be able to form much of a relationship with him if she only saw him once a month for a couple of hours – but it could also be traumatic for her if it triggered a memory of the violence and of the incident in December 2013.

23. There is considerable merit in the suggestion that if the father is to be reintroduced to the child it should be in a controlled, supervised environment where a trained worker can step in if the child shows signs of distress. 

24. I cannot be sure that the paternal grandmother would do that if she was the one who took the child to see the father. She might feel conflicted between a desire to please the father and a desire to protect [X]. 

25. I cannot be sure that the mother would necessarily protect [X] either to be frank, because I have some concerns about the mother and father’s relationship. It was an on-and-off relationship involving family violence on more than one occasion. 

26. It looks as if the mother was caught up in a cycle of family violence, where violence occurs and the parties separate, then the perpetrator is charming and kind and apologetic so the relationship resumes and the parties get back together, and then the violence happens again because the perpetrator is jealous, obsessive or whatever. 

27. The mother and father had an on-off relationship with violence and reconciliations and the mother has had no domestic violence counselling. There is a risk that the mother and the father might reconcile. That is deeply concerning because it could well expose [X] to further family violence and risk of harm.

28. I cannot stop the mother taking the child to the jail if she chooses to do so. I cannot stop her but I would be loath to make an order requiring her to do so and perhaps putting in train something that might lead to the mother and father reconciling and to there being another incident of violence.

29. I must consider the capacity of each of the parents to provide for the needs of the child.

30. I am satisfied – absent the issue of the mother possibly reconciling with the father which concerns me – that the mother has a good capacity to provide for the needs of the child. 

31. I cannot be satisfied about the father’s capacity to provide for the needs of the child. 

32. The father says that he loves his daughter and I accept that he probably does, but his behaviour in December 2013 suggests that during that incident his daughter simply did not exist for him. 

33. The father pushed the mother over while she was holding the child. He tailgated the mother’s car and swerved and kept trying to cut her off.  He had no thought at all for his daughter on that occasion so there is serious reason to be concerned about his parenting capacity, and there would need to be a very thorough investigation before unsupervised time could be considered. 

34. Another concern about the father is that he has a long history of offending. It is not as if he went into a relationship with the mother and suddenly found himself behaving violently and being in trouble with the police. 

35. The father admitted that he had been in and out of prison since 2001, and not just for short periods. He has had years when he has been in prison according to the history he gave to me. He said that most of his imprisonment was for driving offences, but one of the driving offences – concerningly, given what happened to the mother in December 2013 – was for driving in a manner dangerous, in other words driving in a manner that potentially endangered members of the public.

36. The fact that the father has a very long history of offending including for offences where he hasn’t bothered to obtain a drivers licence, dangerous driving, and other offences – is another concern about the father, and it means that I cannot be satisfied on any level that he is someone who is likely to be a good role model for his daughter or a safe person to be around his daughter. 

37. The mother also raised concerns about mental health issues and cannabis use. Those are issues that will need to be more thoroughly investigated if the father gets out of prison and pursues an application for time with [X].

Conclusion  

1. The Family Law Act 1975 recognises that children have a right to know and be cared for by both of their parents, and it is very important for children to have both parents in their life if possible, but these are children’s rights, they are not parents’ rights, and while it is good for children to have both parents in their lives there are occasions when one parent is a poor role model or is likely to place the children at risk of harm and therefore that person is not a good person or a safe person to have in the childen’s life.

2. The father has a long history of offending and has committed acts of family violence against the mother which have included physical violence and which have caused injuries. 

3. The father at the very least has a serious anger management problem and there are signs that he has perpetrated coercive and controlling family violence. He does not seem to have much regard for the law as far as having a drivers licence is concerned and he has been charged with assault and there are allegations about his mental health and cannabis use. 

4. All this means that I cannot be certain that after the father comes out of prison it will be appropriate for [X] to have a relationship with him, and there is not much point in [X] being taken to see the father once a month for the next nine months if there is a considerable question mark over whether the father is a suitable person to be in her life in the longer term. 

5. There are also other concerns about [X] being taken to the jail. The environment at [C] Gaol may be all right. There may be a picnic area. [X] at her age might not  have any conception that she is in a jail so there might not be any difficulty for [X] in seeing the father at a place like [C], but in my view the whole situation of [X] suddenly being taken to see the father for a couple of hours and then not seeing him again for a month could, even if it is not traumatic for [X] – and I have to be concerned about the potential for trauma, given what she has experienced – even if it is not traumatic for her it could be extremely puzzling for her. 

6. [X] is not quite three. She is not old enough to have someone explain to her that she is going to see Daddy now and there will be x number of sleeps before she sees him again. She is not old enough to understand why there is that gap of time. She is not an older child with an established relationship with the father, so if she goes to see him in prison for a couple of hours she may find that quite distressing, and she will not be able to understand what is going on.

7. The father might get a lot of benefit out of [X] going to see him in jail. He would be proud to see her. The other prisoners could see his daughter and she is no doubt a delightful little girl and he would be quite happy to show her off, so it would be good for him if [X] went to see him in jail. I am not convinced however that [X] would get anything from it and I have to focus on [X]’s best interests not the father’s best interests. 

8. The father is due for release, if he gets parole, next June. He can bring an application about time with [X] when he is released. A thorough investigation can take place and a decision can be made about whether it is appropriate for the father to have a long-term relationship with his daughter, and orders can be made to facilitate that if it is found to be in the child’s best interests. 

9. At the present, given the father’s denial about a number of the incidents of family violence and his view that the family violence has simply been because he and the mother strike sparks off each other, there has to be considerable concern about the whole matter. It needs a very thorough investigation.

10. I am not prepared in the meantime to order that [X] be taken to see the father in prison once a month, to create a situation which could be traumatic for her and at the very least is likely to be puzzling for her, when I do not consider that this is necessary to ensure that [X] has a long-term relationship with the father should that be deemed appropriate upon his release. 

11. If the father is released in June 2015 [X] will still only be 3 ½. If it is deemed appropriate for the father to have a long-term relationship with her then steps can be taken to facilitate that. This is not a case where the mother is trying to alienate the child from the father so the situation can be retrieved if it is deemed appropriate for that to happen in mid-2015.

12. I am not willing to make an order today that upon the father’s release supervised time commence because I cannot be sure that unsupervised time is ever going to be appropriate and it is not the court’s practice, unless it has considered the matter very carefully, to make long-term orders for supervised time.

13. I cannot stop the mother and father approaching a contact centre and making their own arrangements for some supervised time to happen upon the father’s release, but I am not going to make an order about it.

14. If the father wants to get back into [X]’s life he needs to bide his time, take advantage of the telephone communication the mother is willing to offer him, and bring an application when he is released, and we will have a very careful look and a close inquiry into the matter at that stage.

I certify that the preceding ninety two (92) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate: 

Date:  3 December 2014