Gulek & Sidu
[2024] FedCFamC2F 948
•22 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gulek & Sidu [2024] FedCFamC2F 948
File number(s): SYC 2542 of 2024 Judgment of: JUDGE MURDOCH Date of judgment: 22 July 2024 Catchwords: FAMILY LAW – PARENTING – Application for Review filed by the father of interim orders made on a defended basis by a Senior Judicial Registrar for the children’s time with the father be graduated, culminating in unsupervised time – Where the mother is the uncontested resident parent – Where all parties agree that the interim orders as to the children’s time with the father should be varied – Where the father seeks further unsupervised time with the children supported by the ICL and the mother seeks supervised time – Where both parents depose that the relationship was marred by family violence – Where the mother alleges unacceptable risk in the father’s care - Where the father’s contention that a denial of family violence can be corroborated by contemporaneous messages of love and support during the relationship is not accepted - Where a party speaking fondly of their relationship is not indicative of an absence of family violence - Where findings as to family violence can only be determined after the testing of evidence - Where the power dynamic of the parties arising from any such findings will require the assistance of expert evidence - Where the placement of the matter in the Evatt list will ensure that resources are allocated to the matter as a priority, including the allocation of a final hearing – Orders made aligning with mother’s proposal and discharging the orders made for unsupervised time. Legislation: Family Law Act1975 (Cth) sections 60B, 60CC(2), 60CC(2A), 60CG, 65AA
United Nations Convention on the Rights of the Child (1989)
Cases cited: Dieter & Dieter [2007] FamCA 608
Goode & Goode [2006] FamCA 1346
Marvel v Marvel (2010) 43 Fam LR 348
M & M [1988] HCA 68
Salah & Salah [2016] FamCAFC 100
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 73 Date of last submission/s: 15 July 2024 Date of hearing: 15 July 2024 Place: Sydney Counsel for the Applicant: Ms Van Oosterom Solicitor for the Applicant: A&E Lawyers Counsel for the Respondent: Mr Jauncey Solicitor for the Respondent: Buckley Lawyers Pty Ltd ORDERS
SYC 2542 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GULEK
Applicant
AND: MR SIDU
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
22 JULY 2024
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Orders 2, 3 and 4 made on 11 June 2024 are discharged.
2.Unless otherwise agreed between the parties in writing the children X born in 2020 and Y born in 2023 (“the children”) shall spend time with the father: -
(a)each Sunday from 10 am until 1 pm supervised by a professional supervised service or centre as agreed between the parties and failing such agreement by “B Contact Centre”; and
(b)at 4:00 pm on Tuesday and Friday each week via a Facetime video call for no longer than 15 minutes and for this purpose the Father is to call the Mother’s nominated phone number and the Mother shall facilitate the children being able to answer the phone and talk with the Father.
3.Save as to the question of costs, the Application for Review filed by the Father on 1 July 2024 is otherwise dismissed.
4.In the event a party seeks costs arising from the Application for Review filed by the Father on 1 July 2024 they are to file and serve an Application in a Proceeding together with any material in support by no later than 4 pm on 29 July 2024 with written submissions of no more than 2 pages in length.
5.Any Response together with any material in support and written submissions of no more than 2 pages in length are to be filed and served by no later than 4pm on 5 August 2024.
6.Unless any Application or Response filed pursuant to Orders 3 and 4 above seek an order that the costs determination be heard orally, the determination of such Application for costs will be reserved to Chambers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These are parenting and property proceedings commenced by the applicant mother on 5 April 2024. The parties have two young children: X, who is four years of age, and Y, who is twelve months old. Y is still breastfed. Whilst there are both parenting and proceedings on foot, the application before me relates to parenting issues only and so I will refer to the applicant in the substantive proceedings as “the mother” and the respondent as “the father.”
The mother and father married in 2014 and separated on a final basis in early 2024 following a serious incident of family violence witnessed by X wherein mutual interim Apprehended Domestic Violence Orders were later issued. Arising from this incident the father was charged with common assault and the mother with assault occasioning actual bodily harm. Each parent asserts the other was the aggressor and that their actions were in self-defence. The criminal proceedings are still on foot.
Subsequent to separation the children continued living with the mother at the family home and the father moved to live at his sister’s property in the same suburb. The children spent no time with the father until orders were made on a defended basis by a Senior Judicial Registrar on 11 June 2024 for the children to spend time with the father commencing with an eight week period of supervised time and thereafter progressing on a graduated basis to weekly day only unsupervised time (“the interim orders”).
The father’s Application for Review of the interim orders was heard by me on 15 July 2024 (“the Review Application”). It is uncontested that the children are to continue living with the mother. All parties including the Independent Children’s Lawyer seek that the Review be upheld although differ as to the orders that should be made on an interim basis as to the time the children spend with the father.
For the reasons that follow, orders will be made to discharge the interim orders and for the children’s time with the father to be supervised pending further order.
BACKGROUND
The mother and father met and commenced their relationship in or around early 2013. They were married and commenced cohabitation in 2024. X was born in 2020 and Y in 2023.
On 5 April 2024 the mother commenced proceedings seeking parenting and financial orders on both an interim and final basis. The mother sought that her application for interim orders be listed for hearing on an urgent basis. She sought orders broadly that:-
·The mother have sole parental responsibility (as it then was) and the children live with her;
·The children spend no time with the father;
·The father attend upon a clinical psychologist to undertake a Mental Health Assessment and attend sessions as required by the psychologist;
·The parties attend a number of parenting courses including “Keeping Kids in Mind” and the father undertake the “Managing Anger” and “Taking Responsibility: Men’s Behaviour Change Program”;
·The father pay weekly spousal maintenance and the mother have exclusive occupation of the former matrimonial home.
By way of his Response filed on 19 April 2024 the father agreed that the children live with the mother and that the parties undertake the parenting courses proposed by the mother. He sought orders that:
·X and Y spend two days with him each week from 9:00 am to 5:00 pm;
·X further spend each weekend with him from 9:00 am Saturday until 9:00 am Sunday;
·X and Y have video or telephone communication with the father on two occasions each week for a period of 30 minutes;
·The mother be restrained from allowing the children to come into contact with Mr C and Mr D;
·The mother undertake a Mental Health Assessment “specifically with respect to anger management, emotional regulation and anxiety” and undertake such therapy as may be required.
The matter was listed for an interim hearing before a Senior Judicial Registrar on 23 April 2024. Orders were made by consent and pending further order that: -
·the children live with the mother;
·the parties be restrained by mandatory injunction from removing or attempting to remove the children from Australia;
·the parties undertake the “Keeping Kids in Mind”, “Parenting After Separation” and “Circle of Security” courses;
·the mother have exclusive occupation of the former matrimonial home;
·an Independent Children’s Lawyer be appointed; and
·the interim hearing matter be adjourned to 31 May 2024.
The matter proceeded to a defended interim hearing on 31 May 2024. Orders were made as to property and spousal maintenance on 3 June 2024. Parenting orders were made on 11 June 2024 that the children live with the mother and spend time with the father on Sunday each week on a graduating basis as follows: -
·for 8 occasions for a period of 3 hours commencing at 10:00 am, supervised by a professional supervised service as agreed between the parties and failing agreement, as nominated by the father with the parties to share equally in the costs of such supervision;
·for 8 occasions for 3 hours unsupervised;
·for 8 occasions for 5 hours unsupervised commencing at 10:00am;
·and thereafter each week thereafter unsupervised from 9am until 5pm.
The children’s time with the father was not to commence however until X had attended two occasions of family therapy with a therapist as agreed between the parties.
The father’s Review Application was filed 20 days later; on 1 July 2024. As at the hearing of the Review Application, X had attended the two sessions of family therapy and spent two occasions of supervised time with the father.
THE PARTIES’ POSITIONS
Both parties amended the relief sought by them on the morning of the hearing of the Review Application. By way of his Review Application the father sought substantially the same parenting orders as sought before the Senior Judicial Registrar. The father then amended this position and supported the orders sought by the Independent Children’s Lawyer as detailed in Exhibit A: -
2.That, unless otherwise agreed between the parents in writing, the children shall spend time with the Father each week as follows:
(i)On a supervised basis each Sunday for three hours on the first four occasions having commenced from 10:00am 7 July 2024 and concluding on 28 July 2024.
(ii)Thereafter and for four weeks on an unsupervised basis:
i.Each Saturday for five hours commencing from 10:00am 3 August 2024; and
(iii)Thereafter and four weeks on an unsupervised basis:
i.Each Saturday for five hours commencing from 10:00am 3 August 2024; and
ii.Each Monday for four hours between the hours of either 10:00am until 2:00pm or 2:00pm until 6:00pm
(iv)Thereafter and four weeks on an unsupervised basis:
i.Each Saturday for five hours commencing from 10:00am 3 August 2024; and
ii.Each Monday for four hours between the hours of either 10:00am until 2:00pm or 2:00pm until 6:00pm
iii.Each Thursday for four hours between the hours of either 10:00am until 2:00pm or 2:00pm until 6:00pm
3.At the conclusion of clause 2 above and pending further agreement between the parties:
a.Each Saturday for eight hours commencing from 10:00am 7 September 2024; and
b.Each Monday and Thursday for four hours between the hours of either 10:00am until 2:00pm or 2:00pm until 6:00pm commencing from 29 July 2024 and 1 August 2024 respectively.
4.That B Contact Centre supervise the Father's spend time with the children pursuant to clause 2.a. above with the costs to be shared equally between the parents.
5.That unless otherwise agreed between the parents in writing and at the conclusion of clause 2.a. above, the Father is permitted to communicate with the children via WhatsApp or Facetime video calls from 4:00pm on Tuesday, Wednesday and Friday each week for 15 minutes.
Thus the father amended the relief sought by him seeking overnight time to that proposed by the Independent Children’s Lawyer; being that the children’s time continue to be supervised until 28 July 2024 and thereafter move to a graduated regime culminating in day only time for both children three times a week.
The mother’s position that the Review Application should simply be dismissed with the father to pay costs on an indemnity basis in the sum of $9,108 was amended such that the mother now seeks that the children’s time with the father as mandated by order 2(a) of 11 June 2024 continue pending further order. Thus the children will spend time with the father from 10 am to 1pm each Sunday supervised by the professional supervisory service B Contact Centre.
It is agreed that:
·the children should spend supervised time with the father;
·the costs of any professional supervision is to be shared equally between the parties; and
·if orders were made for the children to spend unsupervised time with the father, changeover between the parties of the children should occur via a paid professional supervisor.
EVIDENCE
The mother relies upon the following documents: -
·Affidavit of Dr E filed 23 April 2024;
·Affidavit of Ms G filed 24 May 2024, paragraphs 1-7, 33-70;
·Affidavit of Ms H filed 24 May 2024;
·Her own Affidavit filed 24 May 2024, paragraphs 1-3, 41-166, 183-190;
·Her Outline of Case filed 31 May 2024.
The father relies upon: -
·Response to Initiating Application filed 19 April 2024;
·Affidavit of Ms J filed 24 May 2024;
·His own Affidavit filed 24 May 2024, excluding paragraphs 10-39, 46, 141-145, 151-156, 258-269;
·His Outline of Case filed 31 May 2024.
The Independent Children’s Lawyer relies upon:
·The Outline of Case filed 30 May 2024.
THE LEGAL PRINCIPLES
The court is compelled to make such parenting orders that are considered proper.[1] In deciding whether to make a particular parenting order the Court is to regard the best interests of the child as the paramount consideration.[2] The objects of the Act are twofold; to ensure that the best interests of the child are met and that effect is given to the Convention on the Rights of the Child finalised at New York on 20 November 1989. [3] A child’s best interests are ascertained by a mandatory consideration of six non-hierarchical criteria set out in section 60CC(2) of the Family Law Act1975 (Cth) (“the Act”).
[1] Section 65D of the Family Law Act 1975 (Cth) (“the Act”)
[2] Family Law Act 1975 (Cth) ss60CA. This is confirmed in s65AA.
[3] Section 60B of the Act.
In contemplating the mandatory considerations the Court must consider any history of family violence, abuse or neglect involving a child or a person caring for a child, together with any family violence order that applies or has ever applied to a child or a member of the child’s family.[4] Unless it is in the child’s best interests to do so, the court must ensure that orders made are consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. [5]
[4] S60CC(2A) of the Act.
[5] Section 60CG of the Act.
An interim hearing is a truncated process where there is little or no testing of the evidence. Interim orders are described in the well-known passage from Marvel v Marvel as:
…a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders…[6]
[6] (2010) 43 Fam LR 348 at [120].
Thus the court is to be cautious in making findings on contentious facts and looks to agreed facts and issues not in dispute.[7] Despite the court’s limited ability to make findings in respect of controversial facts in interim proceedings, it is not relieved of the responsibility to determine risk. The Full Court in SS & AH [2010] FamCAFC 13 said:
[100] … Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[7] Salah & Salah [2016] FamCAFC 100 affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode & Goode [2006] FamCA 1346.
The assessment of risk thus requires the consideration of two elements - whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event.[8] I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[9] The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances, bearing in mind of course the inherent limitations of an abridged hearing. Where risk is alleged in interim proceedings, a conservative approach is warranted.
THE CHILDREN’S BEST INTERESTS
[8] Dieter & Dieter [2007] FamCA 608.
[9] M & M [1988] HCA 68.
Safety from Harm
The risk of harm to the children is a central issue in this matter. Each of the parents make competing allegations as to the perpetration of family violence by the other, including coercive and controlling behaviours. Each make criticism of the other’s parenting capacity and ability to self-regulate. Both parents deny the other’s accusations. Objective evidence from independent sources is therefore probative in conducting the risk assessment I must undertake in the limited format of an interim hearing.
The father’s affidavit is replete with criticisms of the mother’s parenting of X. He alleges that he was subjected to many instances of physical and emotional abuse by the mother throughout the relationship and that he recalls feeling concerned about the mother’s mental wellbeing. He further deposes that he has “grave concerns” that the maternal grandmother is not “emotionally and mentally suitable to look after my children.” [10] In circumstances where the mother is the uncontested resident parent and he seeks no injunctive orders as to the maternal grandmother or maternal family, the issue for me to determine is whether the children are at risk of harm in the father’s care, and if so, whether such risks can be sufficiently ameliorated.
[10] Affidavit of the Father filed 24 May 2024, paragraph 150 (“Father’s Affidavit”).
The mother alleges that the father’s perpetration of family violence upon both herself and X gives rise to an unacceptable risk of physical and psychological harm were the children to spend unsupervised time with the father. The mother deposes as to numerous incidents occurring during the course of the relationship including: -
·In 2014, the father pushed the mother out of a car onto their asphalt nature strip after an argument, and after the mother made it inside the home he followed her and threw a water bottle at her chest. After this incident the father ignored the mother for a week.[11]
·The father would frequently call the mother “overweight”, a “turn off” and a “spastic.”[12]
·The father told the mother she would “turn into a whale” if she had a baby and that the baby would have ADHD.[13]
·Whilst the mother was pregnant with X, the father attempted to coerce the mother into having the pregnancy aborted, including by requesting his psychologist to tell her to do so.[14] The father then suggested either marrying a second wife or divorcing.[15] After the psychologist declined and informed the mother she did not have to have an abortion if she didn’t want to, the mother was ignored by the father for approximately three weeks.[16]
·When X was three months old the father threw an open water bottle at the wall behind which the mother was seated, which hit her in the head and drenched her and the child. The mother left to stay at a hotel for three days.[17]
·In early 2023, after the mother raised issues regarding X’s vaccinations and her need for financial assistance, the father shoved the pregnant mother into furniture and assaulted her, causing her to have abdominal cramping and fears she was going lose the baby.[18]
[11] Affidavit of the Mother filed 24 May 2024, paragraph 44 (“Mother’s Affidavit”).
[12] Ibid, paragraph 57 and 62.
[13] Ibid, paragraph 59.
[14] Ibid, paragraph 97.
[15] Ibid, paragraph 96.
[16] Ibid, paragraph 97.
[17]Ibid, paragraph 101.
[18] Ibid, paragraph 47.
In evidence is an email from the mother to a third party dated early 2022 alleging that the father:
“.. has tried to launch a punch on two occasions (holds back arm after arm is up) and then goes and packs his clothes and leaves.” [19]
[19] Exhibit M3.
The mother deposes that she is approximately 160 cm in height and the father very tall and he would “often tower over me when speaking to me and yelling at me, causing me to feel intimidated.” [20]
[20] Mother’s Affidavit, paragraph 43.
The mother alleges that the father perpetrated coercive and controlling behaviour including financial abuse. The mother deposes that the father dictated the household budget and provided her with grossly inadequate funds to meet the household expenses. He questioned her purchases from the joint account and insist that she show him receipts, originally in paper form but as time went on the father demanded that the receipts be emailed to him so that he could peruse them at his leisure. The mother alleges that in 2020 the father refused her request to complete the Centrelink forms for the new baby package and parenting payments. The mother again requested the father complete the forms in 2021 and again the father refused and allegedly smashed her laptop to the floor. The mother asserts that the father was controlling of her engaging in outside employment as he did not want her “working with males.”[21]
[21] Ibid, paragraph 95.
The father denies all allegations as to the perpetration of physical or emotional abuse save for one incident where the father admits that he threw a water bottle but it was thrown “...in a direction that was not facing [the mother].” [22] The father alleges that the mother has “chosen to falsify allegations to obstruct me from seeing my children.” [23] To support his denial of the perpetration of family violence the father deposes at length as to various text or email communications between the parties where the mother does not make complaint of family violence and instead sends loving messages.
[22] Father’s Affidavit, paragraph 118.
[23] Ibid, paragraph 83.
The father denies that he was financially controlling and deposes that he consistently paid the mother an average of around $620 per week.[24] The father asserts that it was the mother who demanded reimbursement on various expenses, including $10,000 for baby items prior to the birth of X. The father concedes that the mother has emailed him receipts of her expenditure from approximately 2021/2022 as a “hedge to setup a financial abuse claim to attempt to mislead these proceedings”, all of which was made possible by her experience in family law.[25] The father’s non-response to such correspondence from the mother is, the father asserts, evidence in itself that he never requested financial receipts and thus could not be financially controlling.[26] He deposes that the mother “freely completed two degrees, worked for multiple employers and ran her own business” and that he “supported and encouraged [the mother] at every juncture.”[27]
[24] Ibid, paragraph 130.
[25] Ibid, paragraph 140.
[26] Ibid, paragraph 139.
[27] Ibid, paragraph 188.
The mother’s treating general practitioner from 2014 to 2018 deposes that, whilst not having access to his medical records as they are retained by his former medical practice, he can recollect having a number of conversations with the mother throughout his duration as her treating medical practitioner that caused him concern. Such conversations included the mother telling him in approximately 2015 that the father did not want the mother to fall pregnant as “he’s worried that I am going to gain weight and said that I will turn into a whale.”[28] The doctor deposes that as part of his medical evaluations he observed physical injuries on the mother that were consistent with family violence including “bruises, lacerations and marks indicative of physical trauma.”[29] He deposes that he recalls such observations occurring frequently and commenced from early in the marriage. It is the doctor’s opinion that such observed injuries were consistent with the mother being the victim of family violence. On each occasion he observed such injuries the doctor deposed that he would ask the mother their cause and she would:
..in response break down in tears and say words to the effect that “Please, I do not want to talk about it. I do not want this recorded. I do not want to get him into trouble.”
Whilst I had explained to [the mother] the importance of recording her injuries and this information, she was adamant on not wanting to disclose any incidents of violence.
Out of concern that if probed further, [the mother] would grow more distressed, I would cease my line of enquiry.
…
On some occasions, [Ms Gulek] would evade answering my questions as to how she had sustained these injuries. On a number of occasions, [Ms Gulek] would attempt to provide explanations as to how the injuries have been sustained. Some examples include, that she had fallen or accidentally slammed her hand in the door.
Whilst I accept these injuries can occur, the explanations that were offered my [Ms Gulek] did not align with my professional opinion. Particularly in light of my studies in [medicine]. At the time, there was no other plausible explanation as to how these injuries were sustained other than trauma.[30]
(as original)
[28] Affidavit of Dr E filed 23 April 2024, paragraph 12 (“Dr E’s Affidavit”).
[29] Ibid, paragraph 18.
[30] Dr E’s Affidavit, paragraphs 19, 20, 21, 23 and 24.
It was submitted by the father that I would have some concern as to the evidence of the doctor in the “absence of disclosure of the mother’s mental health plan and what was being treated.”
Both parents give differing accounts of a physical incident that occurred between them in early 2024; being the catalyst for their separation. Each says the other was the aggressor and their actions were defensive. It is uncontested that both parents were injured as a result of this incident; the father requiring stitches to his face and the mother incurring significant bruising on her face and arms. Both parents gave evidence they assert supports their version of events. The incident was witnessed by X; the father deposing that he “looked terrified and was holding back tears” during the event.[31]
[31] Father’s Affidavit, paragraph 173.
The mother deposes that subsequent to this incident X has had frequent emotional outbursts and has regressed in his toilet training, now again requiring pull-up nappies at night. He has had frequent night terrors and has begun sucking his thumb. The mother deposes that unprovoked, X has recounted the incident to numerous people. In evidence is an email from X’s day care to the mother dated mid-2024 which states:
The children had been hitting each other and [Ms F] was having a conversation with them about why we don't hit our friends and our hands are not for hitting and [X] replied "yes that's right, my dad hit my mum and she called the police" - he did not seem upset at this time, more so he just wanted to be involved in the conversation about why we do not hit.[32]
[32] Exhibit M6.
The maternal grandmother deposes that X has become hypervigilant as to the mother’s whereabouts, chewing on various objects in attempt to self-soothe, and randomly professing “I am going to tell my dad to hit you.”[33]
[33] Affidavit of Ms G filed 24 May 2024, paragraph 67 (“Maternal Grandmother’s Affidavit”).
It is the father’s position that any distress displayed by X results not only from the witnessing the physical incident between the parties but also as a consequence of not spending time with the father for three months.
In addition to the early 2024 events, the mother alleges the father broke into the home in early 2024 between the hours of 11pm and 4am and changed the electronic pin on the front door. Upon awakening the next morning, the mother asserts she noticed the front door latch undone and tested the new combination she had reset for her protection, which did not work.[34]
[34] Mother’s Affidavit paragraph 53.
The maternal grandmother deposes that when she learnt that the father had broken into the house overnight while the mother and children slept, the mother was visibly frightened, spacing out and paling as dusk approached. In order to support the mother, the grandmother alleges she began sleeping and staying at the house.[35]
[35] Maternal Grandmother’s Affidavit, paragraph 50.
The father denies this allegation and notes he believes the mother “knowingly falsified the alleged incident…to conveniently seek recourse for an AVO to shut me out of my home and prevent me from seeing my children.”[36]
[36] Father’s Affidavit, paragraph 246.
The mother alleges that the father’s physical discipline of X has been excessive and deposes to several incidents including: -
·There were numerous instances when the father would pinch X’s finger or press his index finger on to X’s collarbone, which would cause X to be inconsolable.[37]
·On X’s third day of toilet training, when X did not make it to the bathroom in time, the father accused him of “doing it on purpose” and would “hurl” him on to the toilet seat and cause him to cry.[38]
·In late 2023, the father hurled X into the air and dropped him from chest height into a faulty travel cot, causing X to sob and say “Dad hurt me mama.”[39]
·In early 2024 on a family holiday, the father grabbed an object from X’s hands and threw it against a wall, smashing it. The father then leant over X and began screaming at him, to which X screamed “stop! I am scared stop!”[40]
[37] Mother’s affidavit, paragraph 129.
[38] Ibid, paragraph 156
[39] Ibid, paragraph 135.
[40] Ibid, paragraph 136.
Such evidence is supported by the maternal grandmother, who deposes to witnessing the father’s physical interactions with X at family gatherings. On one occasion, a two-year-old X bit the father whilst in his highchair. In response, the father allegedly grabbed him and marched him down the driveway while X was wailing “in pain” and pointing to his collarbone.[41] The grandmother asserts she witnessed the father pinch X’s index finger after X bit his younger cousin.
[41] Maternal Grandmother’s Affidavit, paragraph 44
The father denies ever being physically abusive to the children and alleges that during the relationship he would hear the mother yelling and screaming at X and recalls thinking that the mother “lacked the emotional and empathetic disciplines as a parent.” [42]
[42] Father’s Affidavit paragraph 225
The Children’s Views
The children are too young for the court to place any weight on their expressed views as to their parenting arrangements.
The Developmental, Psychological, Emotional and Cultural Needs of the Children
It does not appear to be controversial that X has experienced difficulties in regulating his emotions and behaviour. In evidence is an email from X’s day care to the mother dated late 2023 which states:
As discussed yesterday, as the severity and amount of incidents has increased significantly and we have received multiple complaints from parents of the centre including 2 families leaving our service we will need to work together to ensure the safety of all of our children.
We will need to temporarily adjust [X]'s hours of attendance to ensure he has an educator one on one to ensure the safety of the other children.
After being threatened with expulsion from childcare for biting behaviours, the mother sought assistance from Ms H for X’s “sensory irregularities, fine and gross motor skills, and oppositional behaviours.”[43]
[43] Affidavit of Ms H filed 24 May 2024, paragraphs 8 and 13 (“OT’s Affidavit).
Dr E deposes that X exhibited sensory processing issues on his first assessment at aged 2 and 10 months. She noted that:
[X] presented as a bright child with excellent problem-solving skills but exhibited sensory processing issues. I observed [X] to be specifically vigilant to his surroundings including sudden, loud and frequent movements. This led me to the view that [X] would be fine in spaces with fewer individuals but that the behaviours of concern as raised by [Ms Gulek] and the Childcare would be triggered and exacerbated in noisy and busy environments like childcare.[44]
[44] Ibid, paragraph 32.
Upon second assessment on 18 March 2024, X’s exhibited behaviour confirmed the need for sensory-based intervention, including higher than typical sensitivities and seeking behaviours.[45] As such, he requires strategies to honour his sensitivities, and tools and techniques need be employed to assist him, including having “clear boundaries, open communication and appropriate responses to his needs.”[46]
[45] Ibid, paragraph 39.
[46] Ibid, paragraph 41.
The mother alleges that such behaviour is a result of witnessing the acts of family violence perpetrated upon her by the father.
The father does not directly address X’s behavioural issues in any meaningful manner. He does assert he was appointed as a school coordinator which required him to deal with students with behavioural issues. This role allegedly influenced how he dealt with X’s challenges:
I would take the approach of not judging the behavioural issues but rather try and understand the root cause of any underlying issues and adopting a strategy to remedy the behavioural issues. I adopted the same approach with [X].[47]
[47] Father’s Affidavit, paragraph 78.
The Parties’ Capacities to Meet the Children’s Needs
The mother’s position is that the father is unwilling and incapable of allowing the children’s medical needs to be met, being particularly sceptical and combative of medical and therapeutic intervention. She deposes that the father was unwilling to vaccinate the children nor administer medication as required, including attempting to remove Y’s IV tubing when hospitalised with an illness as a newborn and questioning the need for antibiotics. The mother alleges on another occasion when X required antibiotics the father refused to give him the full course and threatened her if she did so; “you are going to see something you are not going to like.”[48]
[48] Ibid, paragraph 121.
The father denies the mother’s allegations and deposes that he has always followed medical advice, noting that his children’s best interests are always at the forefront. He asserts that both parties agreed to delay X’s immunisation schedule.
Dr E, X’s occupational therapist, deposes that she attempted to contact the father following X’s intake session and he did not respond for three days. She asserts that her interactions with him were marked by resistance and he made disparaging references to the mother being “nitpicky”, “unreasonably anxious” and trying to find something wrong with her child.[49] This is denied by the father.
[49] Ibid, paragraph 24.
The Benefit to the Children of a Relationship with the Parties
In this matter all parties acknowledge that it is in the children’s best interests to have a relationship with both parents. The mother’s proposal on an interim basis limits the time the children spend with the father to three hours each week whilst the proposal of the father and the Independent Children’s Lawyer will allow a relationship to develop with increasing time, albeit that at this stage it is not overnight.
It does not appear to be the subject of contest that X has enjoyed the supervised time spent with the father on the two occasions that have occurred subsequent to the interim orders being made; the contact reports dated 7 and 14 July 2024 from B Contact Centre are clear and unequivocal in this regard. On 7 July 2024:
The boys were very well dressed and seemed in excellent spirits when I arrived and greeted them and [Ms Gulek]. [Mr Sidu] and [X] affectionately greeted each other when [Mr Sidu] arrived, and [X] excitedly showed [Mr Sidu] the various drawings, and other items that he had brought to share with [Mr Sidu].
…
At one point, [X] suddenly looked up and said, “Dad, I missed you!”
…
When [Mr Sidu] tried to depart, [X] became emotional and repeatedly tried to follow him. It was distressing for both father and son and [X] settled when [Ms Gulek] arrived and cuddled him.[50]
And on 14 July 2024:
[X] was very happy to see his father and ran to him and they affectionately hugged.
…
Overall the visit went very well and both children had a lovely time with their father.[51]
[50] Exhibit F2, page 1.
[51] Exhibit F3, page 1.
Tendered by the father is an email exchange between the mother and X’s therapist. In mid-2024 the mother advised by email as to X’s dysregulated behaviour the day prior to his first supervised time with the father including waking the mother at 2am on the Sunday morning and telling her that he did not want to see his father as:
He smashed door and hit you mumma an im scared he will hit me or [Y].[52]
(as per original)
[52] Exhibit F4, page 2.
In submissions the father conceded that the mother’s actions to comfort X and encourage him spending time with the father that day was to her credit. The mother asserts in the correspondence that she reassured X that the “safety officer” would keep X safe like his mother does. The following morning she let X sleep as long as possible whilst she prepared Y and then spent the time with him in the morning reading a book and talking to X about eating the cake that he had helped decorate the day before for the children and the father to eat during their time. She drew a heart on a piece of paper and told X that if he missed her or anyone else he could press it and “buzzzz they get your love.” [53] The mother ensured that she took the children to the library where they were to spend time with the father so they could orientate themselves and feel comfortable in the surroundings.
[53] Ibid.
DISPOSITION
The mother submits that the children’s time with the father should continue to be supervised for a multitude of reasons:-
·The perpetration of family violence by the father upon the mother during the course of the relationship.
·The cross allegations of family violence arising from the incident of early 2024.
·X witnessing the incident in early 2024 has had a significant impact on the child and the court should have regard to the young ages and vulnerabilities of the children.
·The father’s first response is physical violence when faced with the children behaving poorly;
·The vastly different parenting styles and approaches of the parties and their lack of ability to communicate arising from their serious distrust of each other. As submitted by counsel for the mother, “these are not parents that if a child is distressed the father will pick up the phone and speak to the mother. There is not one example of these parties being able to work together.”
·The parties have not as yet had the benefit of the first return date before the Evatt List Registrar, nor is there an expert report before the court as to what is in the children’s best interests. In those circumstances, the court should adopt a conservative approach.
The father accepts that for abundant caution the children’s time with him should be supervised but submits that it should be for a short period of time as:-
·The landscape of the mother’s position only changed the morning of the hearing after questioning by myself as to the nature of the mother’s allegations of risk; until this time it was the mother’s position that she had concerns as to the children’s time with the father but accepted a progression of the children’s time to being on an unsupervised basis.
·The mother’s position that the relationship between the parties was fraught with coercive control and family violence was not a position adopted by the mother through the course of the relationship as evidenced by her messages of both the mother’s and children’s love for him.
·The supervised Contact Reports demonstrate that the children are comfortable with the father and have a good relationship with him. The father conceded that to the mother’s credit, the mother has demonstrated a capacity to give comfort and reassurance to X so that he is not fearful of the father.
·There is no identification of any risks arising to the children in the father’s care from any experts.
·The mother’s evidence does not reach the standard of an unacceptable risk of family violence or that X has suffered any long-term trauma or issues impacting upon his relationship with the father.
·Supervised time only adds to a perception by X that the father may be a danger.
The Independent Children’s Lawyer adopted the father’s submissions. In addition, it was submitted that the Independent Children’s Lawyer had perused all the available material and was of the view that there is no evidence to support a position that the children are at an unacceptable risk in the father’s care. It was conceded that the event of early 2024 must be seen as a risk, but not one that is unacceptable as “there could be blame on both sides.” The Independent Children’s Lawyer sees a benefit to a short period of supervision but for it to continue indefinitely is excessive.
The physical exchange between the parents in early 2024 is serious and concerning. Uncontroversially both parents received or occasioned injuries and it occurred within close proximity of X. As I am clearly unable to make any findings of fact as to this incident, the long terms effects of which on the children are at this stage unknown.
The mother’s evidence as to the perpetration by the father of family violence during the relationship is particularised and, significantly, corroborated by a medical practitioner – an independent third party. I place significant weight on this evidence despite it being given, as the father submitted, without the benefit of his medical notes. It appears that his observations and communications with the mother were such that he did not require the assistance of his medical notes to relay his recollections. In the environment of an interim hearing this evidence is cogent. There is no foundation to not accept it at this stage. I do not accept the father’s submission that I would be concerned as to this evidence without the benefit in evidence of the “mother’s mental health plan.” The submission that I should place less weight on the medical evidence of a doctor’s own observations as inferentially the mother was suffering from mental health issues at the time is illogical and not accepted.
I give little weight to the father’s submission that his denial of having perpetrated family violence is corroborated by loving messages sent to him by the mother during their relationship. Each of the parents assert this was a relationship marred by family violence. At a final hearing it will be necessary for the court to make a finding as to the perpetrator of such violence. Only then and with the benefit of expert evidence will the possible resulting power dynamic of the relationship be able to be determined and the actions of each of the parents potentially explained and understood. In any event, a victim can still love their abuser but not their conduct. I do not accept the submission that a party speaking fondly of their relationship is indicative of an absence of family violence.
The father’s evidence and submissions are inconsistent. He deposes at length as to the family violence he asserts was perpetrated by the mother upon him, yet the mother is the uncontested resident parent. He makes a very serious allegation in his affidavit that the mother emailed to him receipts of purchases commencing from approximately 2 – 3 years prior to the breakdown of the parties’ relationship as a way to “set him up” and “mislead these proceedings” yet failed to reconcile this with his concession that the mother has facilitated and supported X to feel comfortable in spending time with the father pursuant to the interim orders. Only a final hearing will possibly determine whether the father has been completely reckless in making such an allegation or whether the mother is calculating.
Both parents significantly changed their position as to the relief sought by them on the day of the hearing of the Review Application. I do not accept however that the mother resiled from her evidence that it was her view that the children were at risk of harm in the father’s care. In any event, I am not bound by the parties’ proposals. It is my task to determine as best I can having regard to the limitations of an interim hearing on the evidence what arrangements are in the children’s best interests.
The considerations in this matter are very finely balanced. It is uncontested that X has enjoyed and been comfortable with the time he has spent with the father within the confines of it being supervised. This comfort it is conceded has been bolstered by the mother’s proactive attempts to support X in spending time with the father. I have no evidence as to how X would react were such time to be unsupervised.
Weighing all of the above and acting conservatively, the mother’s allegations as to the father’s perpetration of family violence and his inability to self-regulate leads to the conclusion that it is in the children’s best interests that their time with the father continue to be supervised. The children are young and thus vulnerable. I accept that X’s vulnerabilities in the father’s care are heightened due to his current behavioural issues, irrespective of causation. Supervision of the children’s time will maintain a balance between a mitigation of risk and the maintenance of the children’s relationship with the father pending a testing of the evidence.
The placement of the matter into the Evatt List will ensure that the matter is proactively case managed and resources allocated, as well as allowing the matter to be granted final hearing dates with priority over other matters in the court.
So as to enable the matter to progress quickly to a final hearing it would appear to be sensible for the Evatt List Judicial Registrar to give consideration to making orders immediately for a final parenting report (whether by way of an external single expert report or an internal Family Report) to be prepared rather than a Child Impact Report as the parties have now already had in effect two interim hearings. This matter requires findings of fact to be made which will not be assisted by a Child Impact Report and will only delay the matter progressing to a final hearing.
Given that the children’s time with the father is currently being supervised by a paid private supervisor at the expense of both parents, the orders as made will allow the parties to agree for such time to ultimately occur at a contact centre when available as was raised with the parties during the course of the hearing.
I accept that the children’s ages are such that visual electronic communication may not significantly build on the children’s relationship with the father and may increase the potential for conflict. However, given their young ages and the limited weekly time they will spend face to face with the father, on balance it is in their best interests to have some other form of communication with him during each week; albeit briefly. The father’s proposal of three times a week is excessive having regard to the children’s ages and the intensity of the conflict between the parties. Two occasions each week will allow the children to see their father and communicate with him to build on the maintenance of their relationship.
CONCLUSION
I remind the parents again that the way in which an interim hearing is conducted is vastly different to a final hearing. This determination has been made within the limited time and framework of an interim hearing. Because of those limitations I must act conservatively. The Judge hearing this matter does not take my reasoning into account when determining this matter on a final basis. This is a temporary order only until a full hearing can be conducted with the appropriate testing of the evidence.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 15 July 2024
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