Gunasekara and Gemunu
[2018] FCCA 131
•23 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GUNASEKARA & GEMUNU | [2018] FCCA 131 |
| Catchwords: FAMILY LAW – Parenting – competing residence applications – both parents allege children at serious risk of harm if left in the other’s care. |
| Legislation: Family Law Act 1975, ss.4AB, 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 61DA(1), 61DA(2) 61DA(4), 64, 65D, 65DAA(1), 65DAA(2), 68L Family Law Regulations 1984, reg.7 |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 Other: |
| Applicant: | MR GUNASEKARA |
| Respondent: | MS GEMUNU |
| File Number: | DGC 2847 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 25 – 27 October, 2, 3 & 9 November 2017, and 11, 12 & 13 December 2017 |
| Date of Last Submission: | 13 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 January 2018 |
REPRESENTATION
| The Applicant: | Self-represented |
| Counsel for the Respondent: | Dr O’Brien |
| Solicitors for the Respondent: | D & M Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Ambrose |
| Solicitors for the Independent Children's Lawyer: | Madison Branson Lawyers |
ORDERS
The mother have sole parental responsibility of X born (omitted) 2004, Y born (omitted) 2009, and Z born (omitted) 2010 (“the children”).
The children live with the mother.
The children spend time and communicate with the father as follows:
(a)For a period of three (3) months, there be no time or communication either directly or indirectly;
then:
(b)By telephone each Sunday, with the mother to facilitate the call between 6:30pm and 7:00pm and the mother be at liberty to monitor these calls;
and:
(c)For a period of three (3) months, on one occasion each week for two (2) hours on Wednesday, or such other day as agreed to by the parties in writing, supervised by a professional supervisor from Family Contact Services, or other professional supervisor as agreed to by the parties in writing, with the costs of supervision to be borne by the father;
then:
(d)Each alternate weekend from after school Friday until before school on Mondays;
(e)On the commencement of paragraph 3(d) herein, for half of all school holiday periods as agreed, but failing agreement, the first half in odd years and the second half in even years, with the children to always be in the care of the mother no later than 72 hours prior to the commencement of each school term;
(f)Each Father’s Day from 10:00am until Monday before school;
(g)On the father’s birthday as follows:
(i)If it falls on a week day from 3:30pm until 7:00pm; and
(ii)If it falls on a weekend from 2:00pm until 7:00pm;
(h)On each of the children’s birthday’s as follows:
(i)If it falls on a week day from 3:30pm until 7:00pm; and
(ii)If it falls on a weekend from 2:00pm until 7:00pm.
(i)As otherwise agreed in writing.
The handovers which do not take place at the children’s school take place at (omitted) Shopping Centre, (omitted), or such other place as agreed to by the parties in writing.
The child’s time with the father is suspended:
(a)On Mother’s Day from 10.00am until Monday before school; and
(b)On the mother’s birthday as follows:
(i)If it falls on a week day from 3:30pm until 7:00pm; and
(ii)If it falls on a weekend from 2:00pm until 7:00pm.
The Independent Children’s Lawyer be discharged in six (6) months’ time.
The Independent Children’s Lawyer have liberty to apply at short notice to Judge Harland’s chambers with respect to parenting orders for 6 months.
That within seven (7) days of the Independent Children’s Lawyer recommending a Men’s Behavioural Change course to the father, the father will do all acts and things to necessary to enrol and complete and provide a certificate of completion to the Independent Children’s Lawyer and the mother’s lawyer.
The parties be at liberty to provide a copy of the Family Report by Ms K dated 22 August 2017 and a copy of these reasons to any treating medical practitioner of either party and/or the children.
The Independent Children’s Lawyer provide a copy of these orders to the children’s schools, and a copy of the orders and the reasons to the Department of Health and Human Services.
Each party MR GUNASEKARA born (omitted) 1967 and MS GEMUNU born (omitted) 1972 their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the children X born (omitted) 2004, Y born (omitted) 2009, and Z born (omitted) 2010 (the children”) from the Commonwealth of Australia until 23 January 2021.
That X born (omitted) 2004, Y born (omitted) 2009, and Z born (omitted) 2010 (the children”) be and are hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name on the Watchlist or until 23 January 2021.
This order does not prohibit the taking or sending of the children from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation 13 of the Family Law Regulations 1984).
Property
The property proceedings be listed for Mention Hearing before Her Honour Judge Williams on 19 April 2018.
IT IS NOTED that publication of this judgment under the pseudonym Gunasekara & Gemunu is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 2847 of 2016
| MR GUNASEKARA |
Applicant
And
| MS GEMUNU |
Respondent
REASONS FOR JUDGMENT
This is a troubling case concerning the parenting arrangements for three children X born (omitted) 2004 (“X”), aged 13, Y born (omitted) 2009 (“Y”), aged 8, and Z born (omitted) 2010 (“Z”), aged 7.
For reasons I will explain, I find that it is the children’s best interests that they live with the mother.
The father was born on (omitted) 1967, he is 50 years old. The mother was born on (omitted) 1972, she is 45 years old. The parties’ marriage was arranged by their families in (country omitted). Their relationship lasted about 16 years.
This case centres on competing allegations of risk.
There are very serious allegations about the parenting capacity of both parents. The father also joined financial issues to the proceedings in April 2017 but only the parenting matters are being agitated at this hearing. Due to the nature of the findings I must make about the parties, the property proceedings will be heard by another judge.
The father was represented on and off since the matter first began. Since 18 November 2016 he has had five different lawyers file a Notice of Address for Service on his behalf. Immediately prior to the commencement of the trial the father became unrepresented yet again. Due to this I allowed both parties to rely on all affidavits they filed in these proceedings. The father gained legal representation again while the matter was part heard, but the lawyer withdrew six days later. This lawyer did not appear at the hearing except to seek leave to withdraw and did not file any documents on the father’s behalf.
The father relied on:
a)Affidavit filed 23 October 2017;
b)Affidavit filed 11 September 2017;
c)Affidavit filed 3 August 2017;
d)Affidavit filed 23 April 2017;
e)Affidavit filed 14 March 2017; and
f)Affidavit filed 13 September 2016.
The mother relied on:
a)Affidavit filed 13 October 2017;
b)Affidavit filed 19 June 2017;
c)Affidavit filed 24 April 2017; and
d)Affidavit filed 18 November 2016.
The Independent Children’s Lawyer relied on:
a)Affidavit of Dr A, Forensic Psychologist filed 18 October 2017;
b)Affidavit of Ms J, Family Contact Service Coordinator filed 16 October 2017;
c)Affidavit of Ms J, Family Contact Service Coordinator filed 6 December 2017; and
d)Family Report prepared by Family Consultant Ms C dated 24 November 2017
The father’s case
The father says their relationship was never a happy one. In the early years he concedes the mother was the primary carer to the children. He says in more recent years he has been their primary carer. He says he has a closer more nurturing relationship with them than the mother does.
He says the children are not safe in the mother’s care. He says the mother has made threats to kill herself and the children by poisoning them and by driving them in the car onto the railway tracks. He also says she tried to force him to take poison.
He also says the mother has hit the children with a wooden spoon and sexually abused them. He says the mother often lost her temper.
He says he wants the children to have a relationship with their mother but it can only occur safely if it is supervised. He relies on the assessment of the Department of Health and Human Services (“DHHS”). He perceives that DHHS is the only independent entity in this case.
The father says the mother is determined to portray him in a negative light and has lied in her written and oral evidence. He says he was a good provider for the family and father to the children.
The father also made allegations against the mother’s brother Mr D. He is not a witness in these proceedings. The father has proceedings in the Magistrates’ Court with respect to allegations that the mother’s brother has made threats against him and has tried to set him up and encourage the mother to take out an intervention order (“IVO”) against him. These matters are not before this court. I will not address them further.
The mother’s case
The mother says that throughout the marriage the father was aggressive and controlling. She says he controlled the finances and would not give her enough money to buy clothes and food for the children. She says the father regularly started arguments in front of the children, shouted at her, swore at her and called her nasty names. She also says he did not want her to see her friends.
The mother says they frequently argued. She says the father was unhappy and made many complaints. She says he worked long hours and did not help with the children. She says the father took more than half her earnings from her (omitted) business. The mother says she was the primary carer of the children.
The mother says the father has an anger management problem. She refers to him arguing with clients and threatening a (omitted) bank manager.
The mother also says that the father has made up stories about her, claiming she has mental health issues. She is concerned about what the father has been telling the children about her. She also expresses a fear that the father will expose X to pornography.
The mother says the father is psychologically harming the children by alienating the children from her. She denies making threats and says the father made those allegations so he could obtain an IVO and have her removed from the house.
Independent Children’s Lawyer’s case
At the end of the hearing, the Independent Children’s Lawyer (“ICL”) submitted that the evidence supports a finding that the father is engaged in coercive controlling family violence and that he has psychologically harmed the children. The ICL put it higher than the father influencing the children and submitted that the father coached the children. He supported the family report writer’s recommendations in her oral evidence that the children be placed with the mother with a three month ban on the father seeing the children. After the three month period, the father see the children under supervision for a further three months before moving to unsupervised time.
The ICL also submitted that the mother should have sole parental responsibility for the children.
Division 12A of the Family Law Act 1975 and conduct of the trial
This case was listed for three days. It ran for nine days. In part this was because the parties needed to use interpreters and the fact the father was self-represented. It was also due to the serious nature of the allegations and the fact that this case was about whether or not the children’s living arrangements should be reversed with a period of the children spending no time with their father. It was a difficult case for all involved. The orders I am making, which I am satisfied are necessary for the children’s welfare, will be difficult, particularly for the father. Due to the length and complexity of the proceeding it is necessary for me to set out some of the evidence in detail, whilst not trying to set out all the evidence as not everything that was raised is relevant to the issues I have to decide.
The focus in this judgment will be on the issues which are relevant to what I am being asked to determine. There were many other issues raised by the parties.
Division 12A of the Family Act 1975 (Cth) (“Family Law Act”) gives the Court power to control and direct the trial in parenting proceedings. It was necessary to exercise this power at various points during the trial, particularly with respect to cross-examination.
The purpose of cross-examination is not to address every grievance held by the parties. I will not address every grievance raised but rather will focus on the issues that are relevant to the determination I must make.
In a recent appeal decision of Bell & Nahos [2016] FamCAFC 244 Strickland J addressed a complaint from an appellant that the trial judge had not referred to each piece of evidence and argument and said at [28]-[29]:
Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in Her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.”
Procedural History
Before turning to the allegations and substantive parenting issues that I must determine, I dealt with two preliminary issues at the trial. It was apparent from an affidavit that the father filed on 11 September 2017 that he wanted the Independent Children’s Lawyer (“ICL”) discharged and wanted me to disqualify myself. He filed the affidavit without the assistance of a lawyer. In those circumstances I gave him leave to make oral applications to seek the discharge of the ICL and my recusal. After hearing submissions, I briefly indicated that I would dismiss both applications but that I would give detailed reasons as part of the primary judgment so as not to delay the trial. Providing a procedural history will help put these applications in context.
This matter first came before me in Dandenong on 21 November 2016 when I ordered that parties attend a Child Inclusive Conference the following day.
On 22 November 2016 after hearing evidence from the Family Consultant, I ordered the urgent appointment of an ICL, placed the children on the Watchlist restraining them from leaving the Commonwealth of Australia, and adjourned the matter for Interim Contested Hearing later in that same week. On this date, the father’s solicitor advised that the father still intended to travel to (country omitted) and leave the children with the mother. I outline this exchange at paragraph [86].
On 24 November 2016 I adjourned the matter for Interim Contested Hearing on 28 April 2017, set the matter down for final hearing commencing on 11 December 2017, ordered a Family Report, and order that parties engage in the Post Orders Support Pilot Program at CatholicCare. There were further interim orders which provided that the children live with the father and spend supervised time with the mother in the event the father did not travel to (country omitted) on 2016.
On 28 April 2017, due to the serious risk allegations that were being raised by both parties, I brought forward the final hearing with respect to parenting matters to 25-27 October 2017. I made further orders that the children live with the father and spend time with the mother supervised by a professional supervisor.
On 19 June 2017 the mother filed a contravention application alleging that the Father had contravened Order 13 and 14 of the Orders made on 28 April 2017 by not doing all acts and things to necessary to undertake the intake process with Family Contact Service to enable the children to spend time with the mother as soon as possible. Her lawyers made several attempts to contact him before filing the application. The order I made on 28 April 2018 required the parties to contact the centre forthwith. In her supporting affidavit filed on 19 January 2017 she expressed her continuing concern that the father was isolating the children and exposing the children to the conflict.
On 7 August 2017, I adjourned the contravention application to the final hearing. The parties entered into consent orders on this date. Despite this there continued to be problems. In addition to failing to make the children available to spend time with the mother, the father also refused to attend his appointment with Dr A.
On 7 September 2017, I made consent orders in Chambers, at the request of the parties, for the mother to spend make up time with the children and for both parties to attend upon Dr A for psychiatric assessment. There is a notation that the mother agrees to discontinue her Contravention application.
On 4 October 2017, the matter came before me for Mention Hearing in relation to correspondence received from the father which raised concerns, amongst other things, with respect to the family report. Although all parties were legally represented, neither the father nor the mother were present in Court. The ICL advised that the mother had seen Dr A but that the father had not, citing it as too expensive. I reminded Counsel for the father that the father had a history of not complying with Court orders, and that he was expected to comply. I also reiterated that it would not assist the father’s case if he did not attend Dr A. The mother’s solicitor also advised that the father had yet again stopped the children spending time with the mother. I again advised that I expected compliance with my orders. The ICL advised that he would be able to get a further appointment with Dr A for the father, but that he needed clarity on whether or not the father would actually attend.
First return date and child inclusive memorandum
The father commenced these proceedings in September 2016. The father alleged that he children were at risk of harm from their mother.
The matter first came before me in Dandenong on 21 November 2016. On that occasion I directed the parties and children attend a family consultant for the purpose of child inclusive conference (“s.11F conference”).
The parties and children attended the s.11F conference in the morning of 22 November 2016 and the family consultant gave oral evidence later that day.
The father told the family consultant who conducted the s.11F conference, Ms M, that the children are at risk of harm if they spend unsupervised time with the mother because of the threats she is alleged to have made to kill both herself and the children. The mother denied making such threats and told the family consultant that there was one argument between the parties where she says she said something like “if this is how things are going to continue you may as well kill me and the children now because I would never leave them with you.” She told family consultant that she believes that the father has taken this comment out of context. There are many examples during the course of these proceedings of the father taking things out of context and misunderstanding things. This will be illustrated elsewhere in these reasons.
Aspects of Ms M’s evidence was incredibly concerning with respect to the children’s presentation:
Ms M: One thing I found quite interesting in interviewing the children – because I had anticipated it was going to be quite a prominent of their interviews, that they would be repeatedly telling me that they were scared because Mum had said she was going to kill them. In fact, X didn’t mention it at all and the only child that did was Y the seven year old boy, but what he was saying was that Mum had made this threat against them when he was asleep. He became quite confused in what he was telling me because I said to him, “But if you were asleep, how could you hear it?”; “No, I did hear it. Maybe I was just starting to go to sleep.” so whether he in fact heard it or was told that is questionable.
Ms M: The father also raised concerns saying that the mother has repeatedly and often hit particularly the younger two children with a wooden spoon and that, on occasion, this has left marks on their bodies. That was a repeated theme from all of the children today and in fact, X brought the wooden spoon with her to show me. The mother’s response to that is that she has never hit the children; that she has, if you like, threatened the younger two with a wooden stick, but that she has never actually hit them.
HER HONOUR: Did it surprise you that the 12 year old brought the spoon with her?
Ms M: I was somewhat taken aback. She also had a notebook full of incidents and concerns that she wanted to share with me.
HER HONOUR: Okay?
Ms M: Which again struck me as unusual. I have not come across that before. It was interesting to me, I have to say, in the way that she showed me the wooden spoon. It was identical to the way that her father had demonstrated the wooden spoon to me in the sense that he had used his arm to demonstrate the length of the spoon, which is what she also did.
Ms M noted that she was unclear as to whether or not DHHS was currently involved with family. She noted that in its s.67Z response to the Court dated 7 October 2016, that it did not assess that the children were at significant risk of harm in either parent’s care and that it noted that the matter was before the Court.
Ms M expressed concern about the children being aligned with the father and about X’s presentation in particular. I also expressed my concern particularly with respect to it appearing that she came to the appointment primed with the wooden spoon and the notebook of complaints she prepared.
At the end of the interview Ms M discovered that the father had booked travel for himself and the children that Friday for 10 weeks. Ms M said that she would be very concerned for the children’s psychological well-being if the trip were to happen and the opportunities for the father to further align them, potentially with the support of his family, with the mother having no opportunity to intervene. She also commented that X mentioned at the beginning of the interview that she wanted a holiday in (country omitted).
I commented that the proposed trip to (country omitted) was not appropriate at that time in the current circumstances and that the main consideration of the Court at that stage was spend time arrangements between the children and the mother and how the children could be supported in that. I expressed concerns that X was refusing to refer to her mother as “mum” but instead referring to her by her first name.
The matter was stood down so the lawyers could take instructions from their clients and so they could have discussions. When the matter was re-mentioned the father’s lawyer stated that whilst they had not reached agreement the father was still minded to travel to (country omitted) on Friday and was not opposed to the children living with the mother in the former matrimonial home with the children whilst he went to (country omitted).
That afternoon the father sought orders allowing him to take the children to (country omitted) for 10 weeks to visit his ill mother. He was granted leave in Court to file an affidavit in support. In that affidavit, the father says he wants to take the children to see his mother who was 80 years old and in poor health. He annexes a copy of an itinerary showing he booked the tickets on (omitted) 2016 for himself and the children to travel to (country omitted) on (omitted) 2016. After hearing oral evidence from Ms M, I adjourned the proceedings to 24 November 2017.
The ICL first appeared on 24 November 2016.
The father’s application in a case to vary the interim orders
The father filed an application in a case on 14 March 2017 together with an affidavit in support which he affirmed on 9 March 2017 seeking to vary the interim orders because of disclosures X made to the psychologist that she was seeing at CatholicCare, as part of the Parenting Orders Program the parties were attending,[1] and investigations being carried out by DHHS.
[1] See order 4 of the Engrossed Minute of the Orders made 24 November 2016.
He alleges at [3(b)] of the same affidavit that X disclosed to her psychologist that the mother had been touching her breast and touching her younger brother’s penis whilst watching television. X also complained that the mother leaves the bathroom door open when going to the toilet and when changing sanitary pads. X also complained that the mother frequently pinches her breast and that the mother showed a used sanitary pad to the youngest child. The father says Y asked him if all females urinate blood.
The father says that after the psychologist spoke to him she made a report to the DHHS. The father caused his lawyer to write to the mother’s lawyer and the ICL about these developments. The father says the DHHS interviewed him and asked him to enter into a safety plan.
The father makes other complaints about the mother’s behaviour as reported by X and the difficulties he says he had in encouraging the children to see their mother, but he says he only stopped the mother’s time when the DHHS implemented a safety plan on 28 February 2017.
In his affidavit filed 14 March 2017 at [4], the father complains the mother breached order 6(c) of the orders made on 24 November 2016, with respect to the injunction restraining the parties from physically disciplining the children. He says that on 18 January 2017 the mother threatened X and physically removed X’s phone from her. The father says he was communicating with X during the mother’s visit as X was unwell.
He says the mother then sent him a text telling him to telephone her if he wanted to speak to the children. The father conceded in cross-examination that she sent this from her phone, not X’s.
The mother denies all of the allegations the father makes in his March 2017 affidavit. The mother says she was shocked by them. She says the father is influencing the children to not to spend time with her because he does not want the children to have a relationship with her. She says the father denigrates her to the children. She does not specifically address the issue with X’s phone in her affidavit. During cross examination, the father put to the mother that he gave the children a phone to keep with them when they were spending time with the mother so that if there was any issue they could tell someone. It is part of his case that the children fear her and do not feel safe with her. He gave X a mobile phone so that she could contact him if there was a problem for her. The mother said that the father did this because he had an agenda. The father put to the mother that she took the phone away from X and that X is now too afraid to go back to her. The mother said that X was never frightened of her, and that she is frightened of the father because he is not allowing her to go and see the mother.
Whether intentional or not, I am satisfied that the father texting X during the mother’s limited visits, would have been disruptive and undermining. On 18 January 2017, the mother had the children from 3.30pm until 7.00pm. The overnight visits had only commenced on 14 January 2017.
The father says X returned home on 18 January 2017 with a high fever and had nightmares calling out “mum don’t hit me”. He says X told him the mother screamed at her when she refused to look after the younger children whilst she went shopping. The father says he took X to the 24 hour medical centre and her GP because of her fever. The father annexes three medical certificates signed by Dr R. Each one records that the certificates were obtained on 9 March 2017. All three certificates state that the children will be unfit to continue with their usual occupations. They do not provide any further detail. With respect to Z and Y the period covered is (omitted) 2017. With respect to X the period covered is (omitted) 2017.
The father conceded he did not facilitate the mother’s time with the children on 21 and 25 January 2017 but says he encouraged the children to see their mother and resumed their time with the mother on 28 January 2017. He says he continued to facilitate that time until 3 March 2017 when DHHS advised him not to facilitate the mother’s time with the children.
The father also says he stopped communicating with X during the children’s visits with the mother so that the mother would not get angry at X for talking on her phone. He says that X kept complaining the mother was taking her phone away during their visits.
The father annexes the draft case plan prepared by DHHS. Under the heading “protective concerns” there is a handwritten paragraph stating “Children exposed to mothers [sic] mental health (poor) Mother threatens to kill children – crash car, poison. Mother inapproriat [sic] touching of children. Children fearful of mother”.
The father annexes further documents from DHHS to his affidavit filed on 23 April 2017. He annexed a letter from DHHS to him reporting on the outcome of the investigation and the case plans prepared for each of the children. In the letter DHHS confirmed that the concerns were substantiated with the mother being responsible for harm. The risk status recorded is that there is no further risk of significant harm. DHHS further recorded that its decision is made expecting that the children will remain in the father’s primary care; if the mother resumes spending time with the children it will be supervised; the father will report any further threats made by the mother or her family to the police; the father will continue to engage with counselling to assist him address the children’s fears, X will continue counselling; and the matter is returning to court on 28 April 2017.
The case plans refer to all three children making disclosures of the mother harming them when interviewed by protection workers. Both parents were also interviewed.
Under the heading “significant decisions” it records that the father will not allow the mother to spend time with the children until DHHS assesses it is safe to do so and that the father will make an urgent application to vary the parenting orders.
The mother says in her affidavit filed 24 April 2017 that when she was interview by DHHS she felt they were not interested in what she had to say.
As result of the father’s application in a case, I made orders on 28 April 2017 which provided that the mother’s time with the children be supervised.
Application to discharge the Independent Children’s Lawyer
In his affidavit filed on 11 September 2017, the father makes complaints about the family report writer, the ICL, and myself.
With respect to the complaint about the ICL, the father complains that the ICL was against him from the first day, being 22 November 2016. He complains that the ICL told him he did not need an interpreter. The ICL did not appear on 22 November 2016. The ICL denies making comments about the father not needing an interpreter.
The father complained that he did not understand what “substantial attendance” meant in the orders that he consented to. The father was legally represented when he agreed to those consent orders. Any criticism of the ICL in this regard is misdirected. It became clear during the course of his oral submissions that the father’s complaint with respect to those orders is really directed at the lawyer who represented him at the time.
It was also apparent with respect to the father’s submissions about discharging the ICL, and regarding my disqualification, that the father has some confusion about the Court process and the Court’s power to make orders regardless of whether he consents to them or not.
On 24 November 2016, having only had the day before to become familiar with the matter, the ICL circulated a proposed minute of order. After the matter was stood down for negotiations the parties returned to Court and their lawyers handed up consent orders. The ICL engrossed the orders at my request as the orders were detailed and he had typed them. It is not unusual for the Court to request the party whose minute of orders is adopted by consent, or made as orders by the Court (with or without amendments), to forward the typescript of the orders to Chambers as this saves the Chambers staff having to type the minute.
The father complains that he wanted to see his ill mother in (country omitted) with the children but that the ICL opposed that and instead proposed that he travel to (country omitted) leaving his children with the mother at the former matrimonial home. It is clear from the transcript of the proceedings on 24 November 2016 that it was the father, through his legal representative who suggested that the mother could move back into the former matrimonial home and look after the children whilst he went to (country omitted).
The father then complained about the ICL’s position with respect to DHHS March 2017 report which recommended that the mother spend supervised time with children. This submission was wholly without merit and misguided as he complains that the ICL did not respect the independence of DHHS and its report, however the ICL’s position at the interim hearing on 28 April 2017 was that the mother should only spend professional supervised time with children. On that day Counsel for the ICL did submit quite properly that there were some question marks about aspects of the report and that the report was in contrast to the Family Consultant’s views at the s.11F conference. Nevertheless, his recommendations were that there only be supervised time in the interim period and he outlined several reasons for that. The ICL’s submissions on that occasion were appropriate and of assistance to the Court.
The very nature of interim hearings is such that contested evidence cannot be tested. DHHS’s report is one piece of evidence and it is for the Court, not DHHS or a family consultant or other individual, to determine contested matters which the Court is required to determine when parties cannot agree. At an interim hearing the Court must act cautiously and cannot ignore allegations of risk.[2] What was in issue at the April 2017 hearing was the affordability of private supervision. That was an issue that was canvassed at the interim hearing and at that time the father had just filed documents seeking to join financial issues to the proceedings. As is clear from the transcript, the Court accepted that the parties had limited financial means and that private supervision was an impost, yet the lack of availability of public funded supervised contact centres meant that realistically the only way supervised time would occur between the mother and the children would be if the parties paid for private supervisors. Whilst the father had a low income he did have two properties, one of which subject to a mortgage, and one of the issues that was canvassed was possibly the parties drawing down a mortgage or taking out a further loan.
[2] Redmond v Redmond [2014] FamCAFC 155.
The father further complained that the Orders of 28 April 2017 were made by consent even though he did not consent to them. He particularly complained about the order that the parties pay 50% of supervision costs. As is clear from the transcript, and from the orders themselves, the orders were not made by consent.
The father’s next complaint was about the orders that were made by consent in Chambers on 7 September 2017. He complains that the ICL sent those orders to his lawyer for him to sign on or around 11 August 2017. The father complains those orders do not provide for supervised time to continue. That is incorrect as order 1 of those orders explicitly state that the orders of 28 April 2017, which provide for supervision, remain in force. He then complains that the ICL added an additional order after the orders were signed. The mother’s counsel pointed out that the order that the father is complaining about did not in fact come from the ICL but from the mother’s lawyer. This was in the context of the mother having filed a contravention application which was mentioned in court on 7 August 2017 when no agreement was reached that date.
The father tendered the copy of the orders that were sent to him and signed by him as Exhibit “A”. The document is a typed document with some hand written amendments. The hand written amendments are with respect to the start and finish time of the proposed make up time in order two and an additional order with respect to change over. The typed portion of the minutes includes an order stating that the Court orders made on 28 April 2017 remain in full force and effect. The consent orders also provide for the father and mother to both attend Dr A for psychiatric assessment and for the parties to pay their own costs of attending that assessment in the sum of $2,200. There are also notations that the husband’s share of the supervision costs in the orders made on 28 April 2017 shall be taken from his share of the parties’ property settlement and that the mother agrees to discontinue the contravention proceedings. The mother’s counsel submitted that it was the father’s lawyers who made the hand written changes to the orders. The father signed the orders and his lawyers sent the orders back. The orders on the Court file made in Chambers on 7 September 2017 accurately reflect the typed orders with the hand written amendments made.
This is another example of the father complaining about a set of orders which actually address what he complains of and furthermore, with respect to the payment of supervision fees, are actually to his benefit. The father’s fixation on these matters is somewhat concerning.
The father also complained that the ICL did not produce a report after he met with children. This is another misunderstanding by the father about the role of the ICL. The ICL is entitled to meet with the children and is under no obligation to report to the parties or the Court the contents of that meeting.
The mother’s Counsel opposed the father’s application to discharge the ICL and submitted that there is nothing from the transcript of Court proceedings that indicate that he has not discharged his duties and that it would be extremely detrimental to discharge the ICL at the final hearing.
The ICL’s Counsel pointed out that with respect to the father’s complaint about the ICL’s conduct on 22 November 2016, the ICL was not in Court on that occasion as he had not yet been appointed. The ICL pointed to order 22 of the interim orders made on 24 November, which state that “there be interim parenting orders, by consent, in terms of the Minute of Consent Orders signed by the parties and dated 24 November 2016”, and then pointed to the engrossed minute which appears behind it and says “It is ordered”. That is where the confusion has arisen with respect as to whether the orders were made by consent or not. Whilst in hindsight the engrossed minute should have been labelled by consent, it is clear what had occurred. The father had the benefit of being legally represented at the time. It is also important to note that these orders were consented to after hearing from the family consultant and at a time when DHHS had advised that it did not have concerns about the children being at risk.
The ICL’s Counsel submitted that it was surprising to hear a complaint about the ICL with respect to the orders made on 28 April 2017 when the ICL’s position was clearly that, until the evidence could be tested, the mother’s time should be professionally supervised. So in fact the father’s application had the ICL’s support. The other document that is the part of exhibit A is a handwritten document hand written by the ICL of a minute of orders proposed on 28 April 2017. The husband’s signature appears in two places on those orders. The husband complains that orders were added after he signed them. Again it must be emphasised that these orders were not made by consent and whilst the proposal may well have been passed back and forward amongst the parties in an attempt to reach agreement on that day, it is clear that agreement was not reached.
The duties of the ICL is set out in s.68L of the Family Law Act 1975:
(1) This section applies to proceedings under this Act in which a child's best interests are, or a child's welfare is, the paramount, or a relevant, consideration.
(2) If it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer, the court:
(a) may order that the child's interests in the proceedings are to be independently represented by a lawyer; and
(b) may make such other orders as it considers necessary to secure that independent representation of the child's interests.
(3) However, if the proceedings arise under regulations made for the purposes of section 111B, the court:
(a) may order that the child's interests in the proceedings be independently represented by a lawyer only if the court considers there are exceptional circumstances that justify doing so; and
(b) must specify those circumstances in making the order.
Note: Section 111B is about the Convention on the Civil Aspects of International Child Abduction.
(4) A court may make an order for the independent representation of the child's interests in the proceedings by a lawyer:
(a) on its own initiative; or
(b) on the application of:
(i) the child; or
(ii) an organisation concerned with the welfare of children; or
(iii) any other person.
(5) Without limiting paragraph (2)(b), the court may make an order under that paragraph for the purpose of allowing the lawyer who is to represent the child's interests to find out what the child's views are on the matters to which the proceedings relate.
Note: A person cannot require a child to express his or her views in relation to any matter, see section 60CE.
(6) Subsection (5) does not apply if complying with that subsection would be inappropriate because of:
(a) the child's age or maturity; or
(b) some other special circumstance.
Several cases have discussed principles to be considered when determining whether or not to discharge an ICL. I had cause to consider an application to discharge an ICL in Cobb & Cobb (No.2) [2015] FCCA 2766. I refer to [18] to [22]:
[18] Holden CJ considered the principles applicable to applications to discharge an ICL in Lloyd v Lloyd and Child Representative (2000) FLC 93-045. Circumstances where an ICL may be discharged include:
a) If there is evidence that the ICL has acted contrary to the children’s interests;
b) If there is evidence that the ICL has acted incompetently in a professional sense:
c) If the ICL has shown a lack of professional objectivity;
d) If to continue to act would involve a breach of fiduciary duty or a conflict of interest.
[19] Holden CJ said the ICL’s duty “is not to neither of the parties but, rather, is to the children and to the Court.” That is plainly correct. He also commented on the reasons why the court is reluctant to discharge an ICL on the basis of “largely unsubstantiated complaints of one of the parties” including:
a) The best interests of children. In that case the ICL had been representing the children for a long period of time and developed a good rapport with them.
b) The court should treat cautiously any allegation of lack of impartiality otherwise every ICL would be in a vulnerable position facing an application to be discharged based on unfounded allegations or perceptions of one of the parties. The need for impartiality does not mean that the ICL should refrain from taking steps in the proceedings that a party does not want the ICL to take. Holden CJ expressed the view that an ICL should only be removed in the case of actual rather than perceived or alleged impartiality because otherwise a party could apply to have an ICL removed simply because a party perceived the representative was not on their side of the case on running in their favour.
c) The last point is the public policy consideration of the costs of the ICL being met by legal aid and the further costs that would be incurred in appointing a new ICL with the need for that ICL to become familiar with the file.
[20]The father’s counsel made submissions in reply said that this issue goes beyond his clients concerns but also to the wider administration of justice and the role of the ICL. His argument relies on the Court accepting that the ICL is a lawyer acting for an opposing party. That is a fundamental misconception of the ICL’s role. It ignores the fact that the ICL is a party not a lawyer acting for a party on instructions. The individual lawyer is appointed as the ICL in that capacity. Section 68L itself refers to the ICL being appointed to represent the child’s interests. That is a different to representing the child on instructions. Section 68L(4) makes it very clear.
[21] The father’s counsel emphasised that the ICL could not help but be aware of the fact that the father was prepared to concede the fundamental basis of this case which was that the children should live with him on a full time basis and would necessarily be influenced by that. The whole difficulty with this line of reasoning is that again it ignores the fact that the ICL is a party to the proceedings. The ICL would have been entitled to have been present throughout that mediation. If the ICL had been involved in mediation, the ICL would have a much fuller picture of the context of the father making that proposal. Mr Puckey also referred to the theoretical risk that the ICL would use this information to her advantage. That submission also shows a fundamental misunderstanding of the ICL because the ICL is not opposing either parent. The ICL’s represents the children’s interests. The ICL is not in an adversarial position in the same way that the parties are. Indeed parenting proceedings the cell not surely adversarial or any longer because of division 12A of the Family Law Act 1975. The position of ICL is analogous to counsel assisting a royal commission. See Bennett and Bennett (1991) FLC 92-191.
[22] Chisholm J considered the role of the ICL in T and L (2000) FLC 93-056. That case also concerned an application to discharge the ICL. Chisholm J said:
The critical question in considering an application to remove a child's representative is whether the representative is likely to carry out his or her task properly. … it might well be appropriate to remove a child's representative where the evidence showed that he or she had deliberately misled the Court or behaved in unethical or unprofessional ways. It might also be appropriate to remove a child's representative where circumstances arose giving rise to reasonable apprehension that the child representative would not deal with the matter impartially. Such circumstances might cast doubt on the ability of the child's representative to “act in an independent and unfettered way in the best interests of the child.
It is appropriate to note in this connection that it is frequently part of the child's representative's role to advance propositions which will be seen by one party as contrary to that party's interests and/or contrary to the child's interests. Differences of views are of course inevitable in litigation. While a child's representative should be removed if there are proper reasons for doing so, it would be quite wrong for a Court to remove a child's representative merely because a litigant has taken the view that the child's representative is acting contrary to that litigant's position, or (from that litigant's point of view) contrary to the child's best interests. I agree with the child representative's submission that it is important to avoid a situation in which the child representative “is a captive or the most vocal, litigious or dissatisfied parent or party.
None of the father’s complaints about the ICL had any merit and the application had to be dismissed. The ICL and his counsel have acted with diligence in this matter which has been of assistance to the Court.
Application for me to disqualify myself
The father’s submissions in support of his application for me to disqualify myself were unclear. In his affidavit filed on 11 September 2017 he complains about my chambers and states that if my chambers were concerned about the children’s best interests they would have investigated issues themselves. When invited to expand on his complaint with respect to my chambers the father could not. This complaint is misconceived. There is no investigative role for chambers to undertake.
The father complains that the decision in Court on 24 November 2016 was arbitrary and inconsiderate, placing the children at risk. He says he signed the consent orders where it was proposed that there be a substantial attendance rather than supervision because I threatened to give sole custody to the mother if he did not. The transcript does not bear this out. He also complains that I used legal terms which he did not understand. The father was legally represented when he consented to the orders that were made on that day.
In oral submissions the father complained that I said to him in Court on 24 November 2016 that he could go to (country omitted) with the whole family after 28 April 2017 and that he waited patiently for that to happen but then it did not. For that reason he went by himself to (country omitted) in (omitted) 2017 without telling anyone. He left the children with a childcare worker that he employed to assist him to care for the children. He complained that I lied to him. It is worthwhile setting out a portion of the transcript of 22 November 2016 of the exchange between the father’s lawyer and myself with respect to the father’s proposed trip to (country omitted).
MR FULLER: Whilst we haven’t reached an agreement as such, your Honour
HER HONOUR: Sure.
MR FULLER: my client has indicated that he still is mindful of travelling to (country omitted) on Friday and he’s not opposed to his wife actually having – or the children living with her during the nine weeks in which he’s in (country omitted).
HER HONOUR: How does that sit with the very serious allegations he has made and his – and what he has said to the family consultant today?
MR FULLER: Well, that’s why we haven’t reached an agreement as to exactly how we do that. He has – his instructions to me are that he has significant concerns in regards to the children, but
HER HONOUR: If he had significant concerns he wouldn’t be leaving these kids for nine weeks with the mother, would he? I mean, seriously
MR FULLER: Yes, I certainly understand your Honour’s concern in regards to that.
HER HONOUR: Yes. I’ve got concerns about his bona fides now. That’s not a criticism of you.
MR FULLER: No, no. And I understand that.
HER HONOUR: It’s simply I just find that’s extraordinary.
MR FULLER: Yes.
HER HONOUR: He’s telling the family consultant that she’s so unsafe that it should only be supervised time and in the context where I’ve got a 12 year old displaying some very concerning issues.
MR FULLER: Well, what his instructions are to me is that he ideally would like to work out how that would take place. And some of the suggestions he has indicated is if his 12 year old was to be given a telephone and the ability to talk to him and also given the ability to talk to me if she had any concerns.
HER HONOUR: You see, my concern also with this 12 year old is that she has been in the position of being the responsible one.
MR FULLER: Yes.
HER HONOUR: And that would just empower her even more. And I suspect you would be getting phone calls every day and her father and then what happens. I mean, really, if he thinks the kids are at that much risk he wouldn’t be saying he still wants to go to (country omitted).
MR FULLER: He has indicated that he – his instructions are that this would be an opportunity for the kids – the children – to re-establish a relationship with the mother so that the court could then be aware as to whether or not the concerns that the children have raised in regards to the family consultant are justifiable concerns, or given time with the mother that the concerns still exist.
HER HONOUR: But if that’s the case – and I understand you’re in a difficult position with all this happening right now.
MR FULLER: Yes. Yes.
HER HONOUR: But if that would be the case, then isn’t it – on his case he’s sending the kids back into danger with the mother.
MR FULLER: Well, once again, he initially has indicated to me that his ideal position would be that the mother move into the house, his property. That initially he said that he had CCTV footage of the house, which would give him – I understand, your Honour, and I’ve spoken to him about that. He has indicated that on the basis – I’ve told him that that would be inappropriate and he’s accepting that. And on the basis
HER HONOUR: I’m really concerned about this. I’m really concerned. I’m astounded with that suggestion that he would think it is appropriate. That fits right in with coercive controlling
MR FULLER: When I’ve spoken to him and told him about – he was saying that the basis was that that way he would feel much more comfortable if anything was to have occurred that the CCTV footage would actually depict it.
HER HONOUR: Well, depict the mother poisoning the kids and killing them?
MR FULLER: Well – and also act as a deterrent, your Honour.
HER HONOUR: Yes. I’ve got real concerns about your client’s bona fides
MR FULLER: Yes, your Honour.
HER HONOUR: if he’s raising these issues: real concerns. And I’m leaning towards the kids should just go home with the mother. How can – I’m just astounded, because I’ve got real concerns about this 12 year old girl, in particular.
MR FULLER: I understand that, your Honour.
HER HONOUR: And what’s the purpose of the trip to (country omitted)? Is it a family
MR FULLER: Well, my instructions are that his 80 year old mother is very frail.
HER HONOUR: Yes.
MR FULLER: I have prepared an affidavit which I was seeking to file today and I have provided my friend with a copy of that. And as a matter of completeness
HER HONOUR: Yes.
MR FULLER: if I could seek leave to tender that. It would give you an overview as to the purpose as for the trip.
HER HONOUR: Yes, okay.
MR FULLER: I have a copy, your Honour. And perhaps if I can
HER HONOUR: All right. Any objection to that?
MS CAMPBELL: No, your Honour.
HER HONOUR: All right. Yes, I will have a look at that. Thank you. I can certainly understand his desire to go to (country omitted).
MR FULLER: Yes, your Honour.
HER HONOUR: But for that length of period and in the face of this
MR FULLER: And it’s fair to say that – that my friend and I discussed this with the family consultant and she indicated her concern in regard to the timing and the length also. She indicated that perhaps down the track a shorter period would be more appropriate.
HER HONOUR: Yes. Yes. I mean, because the other thing I’m very minded to do is to place the children on the watch list today.
During the course of the exchange the father’s instructions changed and he was now proposing to be away for two weeks. I granted the father leave to file an affidavit in Court in support of his proposed travel and adjourned the matter until Thursday of that week to enable the lawyers to take further instructions and for the ICL to come on board.
When the matter resumed on Thursday 24 November 2016, the ICL appeared and indicated he had circulated a proposed minute which the parties were discussing. The father’s lawyer advised that the father had cancelled his trip. At the urging of all three lawyers, I transferred the case to my docket in Melbourne as if it had remained in Dandenong it would have been transferred to another judge as I ceased sitting in Dandenong at the end of 2016. At the parties’ request the matter was stood down and they later rementioned the matter and tendered a signed minute of consent.
I also ordered the parties to attend an intensive counselling program with CatholicCare at (omitted) which was being piloted at the time as it was clear there were cultural issues, possible alignment and issues of risk.
I also made the following comments and had the following exchange with the father’s lawyer:
HER HONOUR: Yes. And it may well be, depending on if things get back on track and the father then decides he still wants to go to (country omitted) to see his family, that that’s possible, because the kids are able to stay with Mum. So what I would hope, because I think he has got legitimate reasons as to why he wants to go. He wants to go home and see his family. It’s just really – I think it would have been one extreme to the other, if the kids were then all of a sudden back with Mum.
MR BULT: Yes.
HER HONOUR: And for weeks without the father being there. I just think that was going to be – and he has probably had a think about
MR FULLER: Yes. He certainly has, your Honour.
HER HONOUR: I think he has probably, you know, come to a realisation about that, but I certainly would think that there’s still that possibility. And particularly since everyone is represented by sensible folk, that that could be something that’s arranged, because I imagine he will want to at some point still.
MR FULLER: Yes. In reflection, your Honour, I guess – I think it was only Tuesday, you know, I mean, he had a lot going through his head.
HER HONOUR: Absolutely. Yes, yes, yes.
MR FULLER: He has reflected and he understands the gravity of it all.
HER HONOUR: Yes. I think it would be – as difficult as that is for him, I think it would be really difficult for the kids at the moment. And so I think it probably is better that that’s not happening. And certainly for the kind of period that he was talking about. But I think that doesn’t mean that that issue can’t be revisited. And I suppose one of the things is really, parties needing to make every effort to make the arrangement work, so that – because my concern is for the kids’ long term emotional and psychological wellbeing. And really, you know, if they have both their parents involved, that’s going to be of assistance. And clearly, of course, the father wants to go home and see his family.
MR FULLER: Yes.
HER HONOUR: And down the track, I imagine there will be issues about the children visiting. I think that’s further down the track, but I anticipate there may be, you know, there may be a need for him to go at some point.
It is quite clear from that exchange that the highest it could be understood was that the father could reagitate his application to travel to (country omitted) at a later date. He did not do so when the matter returned to Court in April 2017.
The father’s complaint with respect to the consent orders made in Chambers on 7 September 2017 is directed against the ICL and myself. It is clear he feels that there has been some collusion between the ICL and Chambers and a lack of transparency. He refers to my Chambers suppressing and omitting reports from the DHHS and the Victoria Police. He provides no details with respect to this. What is clear is from the earlier paragraph in his affidavit is that he states that he respects reports of government organisations such as the DHHS and the Police as he feels those are independent. The only police reports before the Court are those which were tendered as Exhibit C during the course of the final hearing. The DHHS has provided a report to the Court and their records have been subpoenaed. It is not surprising that the father places great weight on the DHHS’ view as they recommended that the mother’s time be supervised. It is the usual practice for chambers to receive the s.67Z and s.69ZW responses and for chambers to release them to parties. Chambers does not issue subpoenas. It is for the parties to file subpoenas with the registry and to file a Notice of Request to Inspect after the return date set by the registry has passed.
The father also complained that I brought the final hearing forward from December 2017 to October 2017. I canvassed this with the parties during the interim hearing in April 2017. As I explained at the time I was concerned about the serious nature of the allegations against the mother. I brought the hearing forward after also being able to bring the family report interviews and release date for the report forward. That was transparent at the time. I was able to bring the case forward because another case settled and the earlier dates became available.
The listing pressures on this Court and the delay is the subject of much public comment in recent times. From time to time it is necessary to relist matters and juggle a busy docket. When the concerning issues in this case became apparent it was given priority over other cases. As the case could not finish within the estimated three day time frame, and because of the nature of the case, it has been necessary to find further dates for it urgently which have the effect of pushing other cases further down the queue. Contrary to there being any prejudice of disadvantage to the father, the father has been on notice of the hearing being brought forward to October 2017 since April 2017. It is only to the benefit of both parties and the children to have the parenting issues finalised as soon as possible.
The father also complained that the family report was organised with someone outside the Court. He complained about the appointment process and complained about his lawyer not helping him with his concerns about this. As I explained to the father during the course of his submissions, the family report was ordered by the Court and was arranged by the child dispute services of the Court as is the usual course. The demand for family reports far exceeds the capacity of in-house family consultants to provide them. It is common for the Court to contract family report work to outside family report writers who are appointed pursuant to Regulation 7 of the Family Law Regulations 1984. The family reports prepared by Regulation 7 consultants have the same status as family reports prepared by in-house consultants. They are Court experts. It is clear that the father disagrees with the content of the family report. The father cross-examined the family report writer, challenging various aspects of her report.
The authorities with respect to applications for judges to recuse themselves on the grounds of apprehended bias are well-established. A leading case on this issue is Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (“Ebner”).
The principles set out in Ebner’s case have been adopted in other more recent decisions, and are well-known. In Ebner’s case, the High Court of Australia (“High Court”) observed that in the absence of a suggestion of actual bias, it is a question of apprehended bias which refers to the independence or impartiality of a judge. A judge must disqualify himself or herself if a fair-minded lay observer may reasonably apprehend that the judge might not bring an impartial mind to the case being heard.
There are two steps that need to be considered. The first requires the identification of what is said that might lead the judge to decide a case other than on its legal and factual merits. The second step is that there must be an articulation of a logical connection between the matter and the feared deviation from the course of deciding a case on its merits. I will address the complaints that are raised in turn.
I note the comments of the High Court in Ebner, wherein they state that judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with practice which prevails in the Court to which they belong.
The High Court said that judges:
[D]o not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
In Minister for Immigration& Jia Legeng (2001) 205 CLR 507, 531-2 Gleeson CJ and Gummow J made the following comments about actual bias as follows:
[71]…Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
[72]…The state of mind described as bias in the form of pre-judgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any pre-disposition or inclination for or against an argument or conclusion...
…
[78]…In considering whether conduct of a decision-maker indicates pre-judgment, or in some other respect constitutes a departure from the requirements of natural justice, the nature of the decision-making process, and the character of the person upon whom parliament has conferred the decision-making capacity, may be of critical importance…
I think that statement applies in this case. Therefore, I dismiss the oral application that I recuse myself from the proceedings. The father has not been able to point to anything that suggests I have prejudged this case. A common theme of the father throughout these proceedings are complaints against various people who he perceives are unsupportive of his case including his own lawyers, a duty lawyer who assisted him, the family report writer, the contact supervisors, the ICL and myself.
The father’s allegations about the mother
Threats to kill
In the father’s first affidavit sworn and filed on 13 September 2016, the father says that the mother made threats towards him, the children and herself throughout the relationship.
When cross examined by the mother’s counsel during the final hearing, the father said that when the mother made threats on 31 May 2016 he reported it to his GP, Dr R, and took the mother to the GP on 2 June 2016. He claims that the mother begged the doctor for medication and that the doctor said there was no medication. He says he reported it because the nature of her threats changed from threatening poison to threatening to kill herself and the children by stopping the car on the railway line.
He says her behaviour escalated with her making specific and direct threats to harm herself and the children.
He says that in August 2016 those threats escalated. At [19] of his affidavit filed on 13 September 2016 he says the mother threatened to end her own life with poison and poison the children. He says the poison she was going to use were containers of insect killer that he keeps in the garage for his (omitted) business.
The father was cross-examined about this. The father says that he heard the wife make threats about seven times in the last seven to eight years. He was pressed to give specifics but was unable to do so.
At [29] of the father’s first affidavit, he says their eldest daughter X told him that she would be dead if she lived with the mother and made a slitting motion across her throat. He says that he believes this is a direct result of the mother’s threats to harm both herself and the children.
He says that on 5 August 2016 they had an argument about a bottle of juice he bought for their youngest daughter. He says the mother threatened to kill herself and attacked him with a cushion and demanded that he take poison. He says the mother threatened to drive the children and herself on the railway tracks in front of a train to kill them all. The father claims that the DHHS told him to kick the mother out of the house. The father says that the children are afraid that the mother will kill them and that X has been particularly affected by this.
The mother gives a very different version of events for 5 August 2016. She says the father hit her with a remote control in front of the children. When cross-examined the mother said that the father was sitting on the coffee table and she was sitting on the sofa with the children when he grabbed the remote control and hit her on the head. The children started shouting and asked the father why he hit the mother.
The mother said she only spoke to X about it later and was worried because it was the first time the children had seen the father hit her. She said X was always asking her why the father kept scolding her. The mother says this is why she wanted the father to consult a doctor about his temper.
The mother said the next day the father cut up their wedding photos with a pair of scissors. The photos were in the drawer in the master bedroom. She says she was not present when he did that, and she started sleeping in the children’s room after the incident on 5 August 2016.
Counsel for the ICL cross-examined the father about whether or not he thinks there is a risk that the mother would kill the children. He responded “Honestly, I don’t know”. The father said he did not resume X when she came home and said to him that if their mother came home they might get killed.
MR AMBROSE: Okay. I wonder if I could have that back, please, your Honour. Okay, you say this:
On 12th of the 9th ’16, before I go to court, I ask my son and elder daughter, do you need me to bring mum home. Both of them said if mum come home, we might get killed.
MR GUNASEKARA: That’s what my elder daughter said before I go to court, because before that date, police – lawyer from police, they rang me, you want to drop the intervention order down to – with – your wife can come home. Then I said yes. Then I say yes. And before that, before I go, I ask my little ones, you want me to bring the children – your mother home? And that time, my elder daughter said with the finger, if my mum come, mum comes, we might – like, with the finger.
MR AMBROSE: What did you say to your daughter when she told you, “If mum come home, we might get killed”?
MR GUNASEKARA: I said in my – I didn’t say anything.
MR AMBROSE: What do you mean you didn’t say anything?
MR GUNASEKARA: I didn’t say anything.
MR AMBROSE: Did you believe that her concern was a reasonable one?
MR GUNASEKARA: I don’t know. That’s what my daughter said to me.
MR AMBROSE: Did you seriously
MR GUNASEKARA: I didn’t make any comment.
MR AMBROSE: Do you seriously – okay. Do you think that your wife is at risk of killing your children?
MR GUNASEKARA: Honestly, I don’t know.
MR AMBROSE: Okay.
MR GUNASEKARA: Whatever she said to me I’ve been putting in front of you, in front of judge and what I report to child safe, as according to the mediator instructed to me. Any threaten comes, you must report. If you don’t report, you’re in trouble. That’s the mediator said to me. That paperworks even I have in my diary.
MR AMBROSE: Do you think that by not responding to that comment by your daughter, that she would be likely to go on thinking that her mother might kill her?
MR GUNASEKARA: I did not comment anything for
MR AMBROSE: No. You didn’t, but you didn’t reassure her that it wasn’t going to happen either, did you?
MR GUNASEKARA: No.
MR AMBROSE: No. Do you think you should have?
MR GUNASEKARA: I don’t know.
The father’s evidence about this is concerning. There are a number of possible explanations for the father’s evidence. One is that X did not make that comment. Another is that she made some comment that the father has misconstrued.
The father’s evidence that he did not reassure X and that he did not know if he should have or not is very concerning because it highlights the father’s inability to provide for the children’s emotional needs. This is not an isolated incident.
During the course of his evidence he gave no indication of having the capacity to positively encourage the children to see their mother. His evidence did not reassure the children that they would be safe and have a good time with their mother. At times he told the children they had to go. At other times he did not say anything to them at all.
Circumstances surrounding the separation
The final incident took place during the evening of 21 August 2016 when the police were called. The father said he called DHHS after the mother threatened to stop the car on a railway line with the children and herself in it. The father insisted that DHHS told him to kick out the mother and claims that when he told them he could not, they said “no you don’t understand the Australian way. You call the police and let them know.” He says as a result of that he called the police.
The mother’s counsel put to the father that during the argument on 21 August 2016 the mother made a flippant comment but did not make a threat. The father did not accept that proposition.
That night the father talked to the police but he said he told them he did not want the mother taken to jail but to hospital. However, he denied saying that he believed she was mentally unwell.
In her affidavit affirmed and filed on 18 November 2016, the mother annexes the safety notice that the police issued to her at 1:30am on 22 August 2016. It records that the father called them about 12:30am with concerns for the mother. He told the police that she threatened suicide and said she was going to poison the children. They record that she denied all the allegations and said her mental health was fine. The safety notice prohibited her from coming within 5 metres of the protected persons, being the father and the children, and within 200 metres of the family home.
The police took the mother to the emergency department at (omitted) Hospital on 22 August 2016 under s.35 the Mental Health Act 2014 (Vic). Annexure AG9 of the mother’s 18 November 2016 affidavit is a copy of the discharge summary from (omitted) Emergency Department. The discharge summary records that the mother was unclear as to why she was brought to the emergency department and reported ongoing issues with the father complaining that he did not allow access to money from Centrelink. She referred to the father recently cutting up wedding photos and removing his wedding ring. She went to bed and then the police attended the home and took her to the hospital. She expressed concern for the children’s safety. The police reported they thought the children were safe with their father. The report states that the police advised the father was concerned and called them reporting that the mother was expressing self-harm ideation and threats to the children.
They obtained a history from the mother with the assistance of a (language omitted) interpreter. She denied having suicidal thoughts and threatening the children. She reported the father being verbally and physically abusive. She did not appear clinically depressed. The mental health clinician who conducted the psychiatric assessment recorded that no investigation or procedure is required.
The mother’s brother attended hospital to take the mother home and advised the hospital staff that he thought the father was acting strategically and that the mother was not a threat to herself or children.
Under cross examination, the father denied that he called the police as a strategic measure to have the mother removed from the house.
The father conceded that the mother was asleep when the police came to the home and took her to the hospital.
The father sought to distance himself from allegations that the mother has mental health issues. He said this is a matter for doctors to assess. I find the father to be insincere when he says this, as it is clear that he does not accept the assessments of the mother because they found she does not have a mental health disorder.
As a result of the incident on 21 August 2016, final intervention order was made on 12 September 2016 naming the father as the protected person. This was taken out by the police.
Father’s allegations that the mother has sexually abused the children and behaved inappropriately
In his affidavit filed on 4 March 2014 in support of his application in a case, the father alleged that the mother had sexually abused the children and exposed them to inappropriate behaviour. He says X made disclosures to the psychologist she was seeing. The psychologist made a report to DHHS. DHHS officers interviewed both parents separately and spoke to the children. The allegations have been set out at [49] to [52] of this judgment.
The father complains at [9] of his 24 March 2017 affidavit that on three occasions when he collected the children from the mother she lifted her skirt exposing her underwear and mocked him. The mother denies these allegations.
At [10] of the same affidavit the father complains the mother has shown X her phone where she has saved the father’s number with the name (omitted) which means pig in (country omitted). The father has the middle name (omitted) but does not use it. The mother denies the father’s allegations and at [4] of her affidavit filed on 24 April 2017 she says she has saved his number under the name (omitted) being a short form of his middle name.
Counsel for the ICL cross-examined the father about the sexual abuse allegations he made against the mother. The father’s evidence stretches credibility.
The father insisted that X complained to him about her mother touching and pinching her breast. The following exchange took place:[3]
[3] Transcript of Proceedings, p.216-218.
MR AMBROSE: Thank your Honour. Most concerningly you raise in your evidence allegations that your wife has sexually abused the children.
MR GUNASEKARA: In that – I think is – I report because of that department human service and also the psychologist, Ms P, said to me
MR AMBROSE: Yes.
MR GUNASEKARA: Even my daughter said to me this, when she said to me that mother inappropriately touching her breasts. And that time – this is the time I said to her “Don’t worry; this your mother”. And she said to me “Dad, it still – it hurts me”. Then I said to daughter “I can’t raise the issue for you all the times. You have a school counsellor. If you have issue, talk to them. If you have issue – you’ve got psychologist; talk to them. I can’t raise the issue all the time. If you have – otherwise, I think this is your mother”.
MR AMBROSE: I guess you couldn’t raise it with her mother because of the intervention order.
MR GUNASEKARA: Yes; if I raise – I had enough to raise issue, because – I raised the issue with the killing children and end up with this disaster. I don’t want live with this condition anymore.
MR AMBROSE: All right.
MR GUNASEKARA: So if I raise that issue, it’s – “He’s lying”. To prove that lying, I’m having enormous pressure. I think – I could be the last dad going to report anything happen going to do by mother to the children. I could be the last one. Why is this? If mother do something – and everything is okay. When dad complain about something doing by mother, this much pressure is going to be ..... a child doesn’t act independently even.
MR AMBROSE: You say that without any irony; don’t you.
MR GUNASEKARA: No. I do. I can prove that
MR AMBROSE: Do you understand what I’m saying, the point I’m making?
HER HONOUR: You need to interpret, sir.
MR AMBROSE: As a result of things that you’ve said and things that the children have – apparently – said, the children are living with you, and their mother has – supposed to have, at least – been having very limited supervised time with them. And yet you say that fathers are never listened to but mothers always are. Do you want to reflect on that?
MR GUNASEKARA: Please do whatever you want, because I had enough this. Do whatever you want. I had enough – clearly.
MR AMBROSE: The – there was a further allegation made that Y’s mother
MR GUNASEKARA: Y’s mother
MR AMBROSE: Was touching his penis while watching television.
MR GUNASEKARA: That’s what the children said to Ms P.
MR AMBROSE: Surely you don’t believe that.
MR GUNASEKARA: I do believe. I’ve been seeing that. Sometimes at home she been giving the breastfeeding to my Y when she was about eight years old, and I’ve been told her “Stop doing that”. She don’t listen. That’s – if I do this issue before my family disaster happen, maybe about five, six years ago.
MR AMBROSE: Do you allege that Y’s mother touching his penis for the purposes of sexual gratification?
MR GUNASEKARA: I don’t know what it is.
HER HONOUR: You need to interpret.
MR GUNASEKARA: I don’t think so, but
MR AMBROSE: Why – do you know why she would do it?
MR GUNASEKARA: I don’t know. You should ask that question from mother, not me. Why – I don’t know why.
MR AMBROSE: But you believe that it’s happened.
MR GUNASEKARA: I think – believe it’s happened. But my two younger ones: I give them shower; in the shower I use soap and shampoo, everything. It’s different story. When watching TV, playing with my kid’s penis is inappropriate. Giving breastfeeding in front of me is inappropriate, and she even walking from inside the home even when she was in ..... house, in full naked. I’ve – being told ..... to stop, but she don’t listen.
MR AMBROSE: Okay.
MR GUNASEKARA: If I raise this issue a long time ago, this – I’m facing this condition maybe three or four years ago.
…
MR GUNASEKARA: I give you my daughter’s phone – they’re in the school. You can ask them right now.
MR AMBROSE: She – is that what you would like me to do? Would you like me to telephone your daughter and ask her about these things?
MR GUNASEKARA: No. I think, if you don’t believe me, you do whatever you want, because if I say – if you don’t believe me, you want a witness. If you ..... just ring up them and ask them whatever you want. You are independent child lawyer. You can contact children all the time. Jesus.
The father also asked Ms K about family violence. She made it clear that it is the Court’s role, and not hers, to make any findings about family violence and who is responsible for it. As both parties identified family violence as an issue, Ms K explained that her role is to identify what the parties have told her about family violence and identify what kind of violence that they allege occurred. It is not her role to believe or disbelieve the parties. She said that family violence is very significant impacting on the children’s welfare.
Counsel for the ICL asked the mother about the family report writer’s recommendations. The mother said it would be a very hard period for the father not to see the children for three months but if the children are not separated from him during that period he will start to influence them again. The mother says the children have been isolated living with their father since separation and have not been engaging with family friends or the (country omitted) community. The mother said the children need to get some counselling. She also wants the father to get treatment as he could give strong positive thoughts that would help the children a lot.
The mother described the father as being very strict and that when living with him she and the children had to abide by his rules and regulations in the house. The mother wants the father to receive treatment and change his behaviour and become a good father so that the children can spend time with both their parents. The mother strikes me as naive in her views about the father responding to treatment and changing his behaviour based on the evidence from his treating medical professionals.
I place great weight on Ms K’s evidence. Her evidence was insightful and extremely helpful.
The parties’ use of the interpreter
The father had to be warned repeatedly to focus on the questions and answer the questions he was asked. He had the assistance of an interpreter. The father has a reasonable command of English and can read documents. At times he had to be reminded to use the interpreter. At other times when he was unclear he checked with the interpreter. He answered most of the questions in English. Occasionally he gave an answer to the interpreter.
It was also clear to me that he relied on the interpreter and answered in (language omitted) when he was getting frustrated and felt the pressure of being challenged in his evidence. I accept that speaking in a Court room setting and cross-examining is more challenging than speaking conversational English.
The mother was almost completely reliant on the use of her interpreter. She also had to be reminded to let the interpreter finish translating the question and that she needed to focus on the question.
My impression of both parties was that there were some cultural issues with respect to the way they answered questions.
I am also mindful that English is not their first language.
Assessment of the parties
I am mindful that the father appeared at the hearing without legal representation which meant he did not have the same filter that the mother did in having lawyers represent her.
The father was incredibly discursive during the course of cross-examination of the mother. He had great difficulty in asking questions which went to the heart of the risk issues. This is illustrative of the father’s obsessiveness and lack of insight. As he was self-represented he was given considerable leeway, but at times it was necessary to place limits on his cross-examination.
He is a man who gets very focused on minor points and has trouble seeing the big picture. For example when cross-examining the mother, and father was most concerned that the mother referred to knowing him for 18 years when they had been married for 16 years. Of course she was correct to say they knew each other for that length of time given the separation was in 2016, but even if she had been wrong about that nothing turns on it.[19]
[19] See, for example Transcript of Proceedings, p.307-311.
The father was concerned that she was not exact about the date of their marriage and indicated that this was an indication of not being seriously committed to the marriage. This in the context of her describing it as an arranged marriage that occurred two weeks after the parties met and the husband being aggressive and controlling.
Another example of this was the father cross examining the mother on whether she lives in a four bedroom or three bedroom house. Whilst her evidence was inconsistent about this at times, it has no bearing on the outcome of this case. I am not concerned that the children are at risk in their mother’s care on the basis of her living arrangements and any inconsistencies in it being a three or four bedroom house.
The father’s cross-examination of several witnesses revealed a preoccupation with issues which do not go to the heart of the risk issues. For example, the father had great difficulty in accepting the explanation of the family report writer, Ms K, that her report is not a complete transcript of everything that each party and the children have said. It does not attempt to be as it would be very long. Ms K ably explained to the father why there were some things he told her that were not in the report.
The father’s closing submissions reflected his lack of insight. He said he hoped that she had learned some lessons and that making threats (that is the threats to poison him and kill the children), whether they actually happen or not, is criminal. With respect to the alleged threats I prefer the mother’s evidence to the father’s. She made a flippant remark that the father has blown out of proportion. I am satisfied that the mother did not attempt to poison the father, did not threaten that she would poison him and did not threaten to kill the children.
In his closing submissions, the father said that even if the court decided that supervision is unnecessary the children should be given a phone as he said it is important that they be able to contact him when they are with their mother so that they can have confidence. He said he wanted the children to live with him and see their mother on Saturdays. He then said that he wants the mother’s time with the children supervised because that is what DHHS said but that it is up to the Court.
It was necessary to warn the mother, just as it had been with the father to let the interpreters interpret the question before she started to answer the question. She answered the questions in a discursive manner and often did not answer the question directly.
Impressions of the father and his interactions with others
The father is inflexible and unable to see things from anything other than his own perspective.
The father is quick to make complaints about anyone he disagrees with and he feels are not in support of his case. At the beginning of the trial he indicated that he was appearing for himself because all three of his lawyers lied to him. During his cross-examination he then complained about the duty lawyer who assisted him with his first affidavit. As he was being challenged about that affidavit he sought to blame the duty lawyer. He relied on the handwritten notes he prepared which are exhibit E. I am not satisfied that the duty lawyer has added to his affidavit without taking instructions from the father. When frustrated or upset, the father also made various complaints about the interpreters, the ICL, the mother’s lawyer, the Magistrates who dealt with the IVOs, and myself. He also repeatedly complains about various documents and actions against him as being fraudulent. I am mindful that the father is self-represented but this does not explain his conduct.
At times the father’s submissions were incoherent and his evidence was contradictory.
I am very concerned about the father’s presentation and his attitude. I can have no confidence that he will comply with Court orders in the future.
I also have no confidence that he will be able to facilitate the mother’s relationship with the children. He appears to lack insight and an ability to see things from another person’s point of view.
It is most unfortunate that the father has not complied with the orders for a psychiatric assessment as that may well have given some clarity as to the father’s mental health and personality functioning.
It became very apparent that the father is incredibly concerned about how he is perceived by others. It appears that much of his concern is about how he is perceived. He had great trouble in justifying his position. He went in circles and repeated the same the allegations again and again.
Legal Principles and their application to the facts in this case
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time.
The focus of the Court’s enquiry is on the best interests of the children. It is not about ranking the parents and assessing who is the worst. No parent is perfect. Assessing the parents’ conduct is only relevant in so far as it impacts on the children’s welfare.
Family violence is broadly defined in s.4AB of the Family Law Act. The definition provides various examples of violent behaviour and the exposure of children to family violence. It does not just refer to physical violence but other behaviour such as making repeated derogatory taunts, unreasonably denying a family member financial autonomy or unreasonably withholding financial support, preventing a family member form making or keeping connections with her or her family, friends or culture. The examples are not exhaustive. Children are exposed to family violence if they hear or otherwise experience the effects of family violence.
I am satisfied that the father has subjected the mother and children to significant coercive controlling family violence. This has most often taken the form not in physical violence but a more insidious form of control and ongoing denigration of the mother. I am satisfied that the children have been exposed to the father’s denigration of the mother and controlling nature. The Family Violence Best Practice Principles describes coercive controlling violence “as an ongoing pattern of use of threat, force, emotional abuse and other coercive means to unilaterally dominate a person and induce fear, submission and compliance in them. Its focus is on control, and does not always involve physical harm”. [20]
[20] 4th edition, December 2016, joint publication of the Family Court of Australia and the Federal Circuit Court of Australia.
The father’s desire to control the narrative and how people perceive him and the mother was evident throughout the course of these proceedings. The father visibly struggled when people did not agree with his version of events and his perceptions.
Section 4 of the Family Law Act defines abuse of child as including causing the child to suffer significant psychological harm including by being subjected to or exposed to family violence.
The Guidelines also recognise that the dynamics of family violence and abuse also occur in a cultural context. Ms K and the Court acknowledged that there are significant issues of culture in this family but that neither Ms K nor the Court has the expertise to assess (country omitted) culture. There was little evidence presented about (country omitted) culture but I formed the impression that it is a significant factor for this family.
With respect to the parties evidence in relation to violence and abuse I prefer the mother’s evidence to the father’s.
I am satisfied that the presumption with respect to equal shared parental responsibility does not apply in this case because of the violence and abuse the mother and children have been subjected to.
It is in the children’s best interests that the mother exercise sole parental responsibility for the children. There is no effective communication between the parents at all. I have considered whether or not I should order the mother to keep the father informed as to the decisions she make and give him the opportunity to provide input before she makes the decision but I think that is likely to lead to further conflict between the parties. The mother indicated that she wants to keep the children at their current schools but in reality she may need to change the schools in the parents’ financial circumstances as such that they can look to afford the (omitted) school fees.
As I am not making an order for equal shared parental responsibility, it is not necessary to consider s.65DAA.
Turning to the s.60CC factors, I am satisfied that s.60CC(2A) applies such that I must give greater weight to the need to protect the children from psychological harm than the benefit of the children having a meaningful relationship with both their parents.
There are 13 additional considerations set out in s.60CC(3). Considering the relevant additional considerations I do not place weight on the children’s views. I am satisfied that they been influenced by their father. The fact that this has manifested in different ways is due to the difference in the children’s ages and stages of development. Z, the youngest child, is the least affected. That is apparent from the observations of the supervisors and Ms K.
I am satisfied that X, at age 13, has taken action to protect herself emotionally by aligning herself with her father. I am satisfied that her actions in taking the wooden spoon to show the family consultant and running away were influenced by, if not directed by, the father. She would be highly aware of the father’s negative views of the mother and his intolerance of views being expressed which do not concur with his own. I accept the evidence of Ms K that the children are likely to settle into the mother’s care fairly easily away from their father’s influence. It may be more difficult for X and it will be particularly important that she not have any contact with the father for three months, as if she does the father is likely to undermine the mother’s parenting as he has done before.
Although I was concerned at the early stage of the final hearing that the mother was naïve in her views about how the children will adjust to being in her care, the evidence of Ms K, the family consultant, and the supervisors from Family Contact service is consistent with her views. The mother has shown admirable insight and attunement with the children’s emotional and psychological needs. She showed considerable insight and restraint in not approaching and overwhelming X and the family report interviews and at the supervised visits.
With respect to Y, there is a real disconnect between the disclosures he makes with respect to his mother and how he interacts with her once given the opportunity to do so. Again this is evidenced by the observations of the supervisors and Ms K.
These orders represent a significant change for the children. X has not spent time with her mother for almost a year. The younger children have only had very limited opportunities to spend time with their mother which have also been characterised by periods of disruption. There is no doubt that it will be a period of adjustment for all involved and that the children may find it difficult at times to adjust to living with their mother in an unfamiliar house and not seeing their father who has been caring for them since separation.
I am satisfied that the mother was the children’s primary carer during the relationship. Whilst the father also provided care, he was working outside the home full time. The father’s current work arrangements are unclear but it is apparent that he has required significant assistance from the child minder.
The children would benefit being able to enjoy a meaningful relationship with both parents provided it is safe for them to do so. I am satisfied that the only way this can happen is if the children are in the mother’s primary care. In order for the mother and children to re-establish their relationships, it is necessary for there to be a ban on the father spending time and/or communicating with the children for three months. After the three month period, I find the father should have supervised time with the children for a further three month period. This will be important in order to protect the children from any negative influence the father may seek to exert with respect to their views of their mother.
I acknowledge that there is some practical difficulty and expense associated with these orders, particularly with respect to the requirement for supervision of the father’s time. Unless the parties are able to utilise one of the community contact centres (which seems unlikely given the waiting times), the father will need to pay for private professional supervisors to supervise his time in the first instance. The mother has paid for her supervised time. Given that the children will be in the mother’s fulltime care, it is appropriate that he do so. It would be appropriate so that there is continuity for the children that the Family Contact Service supervises the father’s time. The father’s criticisms of the supervisors are unfounded.
Both parents come from (country omitted). I am satisfied that the children have been able to enjoy their (country omitted) culture with their parents and will continue to do so. Given the lack of trust between the parties and the fears the mother had about the father taking the children to (country omitted) without her knowledge and consent, I find it is in the children’s best interests to keep them on the watch list for a further three years. If either party wants to travel with the children, unless there is written consent they will need to make an application. The mother will also need to make an application if she wants to extend the watch list order beyond three years.
I note by that time X will be 16.
I am satisfied that the mother is able to provide for the children’s physical, emotional and intellectual needs. Whilst I am satisfied the father is able to provide for the children’s physical needs, he has caused his children emotional harm. I have real concerns that the father will not be able to provide for the children’s emotional needs in the future as the father lacks insight and is likely to be resistant to any treatment.
The mother has demonstrated that she well understands the responsibilities of parenthood. The nature of her removal from the home would have been traumatic. She has complied with Court orders and has gone to considerable effort to see her children in the face of considerable resistance and obstructiveness on the part of the father. The father has not shown the same responsibility.
Parents have a positive obligation to promote and encourage the children’s relationship with the other parent. Far from doing this, the father has sought to undermine the children’s relationship with their mother whether consciously or unconsciously. It is striking that he was unwilling or unable to provide the children with any emotional support and encourage them to see their mother with the supervisors present. He seemed to have no regard for the emotional impact on the children in being told, not by a father, but by a stranger that they were about to see they mother.
I suspect that the father has not just been passive in this regard but active in discouraging the children. This is evidenced by X attending the family consultant with a wooden spoon and prepared notes. She mimicked the father’s actions with the spoon to the family consultant. I do not accept the father’s evidence that X brought the spoon without his knowledge. I also do not accept that the father did nothing to encourage X to run away, rather than see her mother. I do not know if he instructed her but he certainly tacitly encouraged and rewarded such behaviour. He did nothing to reassure X and encourage X to have a relationship with her mother.
The only way X’s relationship can be repaired is for X to be reunited with her mother away from her father’s influence.
It is of course crystal ball gazing, but I am satisfied that these orders present the only opportunity for the children to have a meaningful relationship with both their parents in the future. To leave the children where they are would leave them exposed to continuing emotional harm which could have negative impact on them for years to come.
The ICL volunteered to remain involved in this matter for the next 6 months. I will make that order. I will also give the ICL liberty to apply at short notice during that period as there may be issues arising out of these orders particularly if X is resistant to staying with the mother or if the father fails to comply with the orders.
Counsel for the mother sought an order that the father be psychiatrically assessed by Dr A. I see no utility in such an order. To the contrary, to do so would invite further litigation.
In her amended response the mother sought orders that address Mother’s day, Father’s Day and the children’s birthdays. They are silent about Christmas Day. The orders sought in the father’s amended application, which was prepared by a lawyer, does not address those issues. In those circumstances I have largely adopted the mother’s orders.
I have no doubt that the father will find these reasons and orders very difficult. He would benefit from psychological assistance but that must be at his own instigation. I note the comments by his medical treaters about his obsessional thinking and resistance to treatment.
I am confident that the mother will arrange supports for the children. To assist in treatment of the parties and children, I will order that the parties be at liberty to provide a copy of the family report and these reasons to any treating practitioner.
I will also direct the ICL to provide a copy of the orders to the children’s school and a copy of the orders and reasons to DHHS given their previous involvement.
I certify that the preceding four hundred and fifteen (415) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 23 January 2018
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